Appendix: What Is Transformative? an Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law

Chicago-Kent Journal of Intellectual Property

Volume 11 Issue 2 Article 9

4-1-2012

Appendix: What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law

Michael D. Murray

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Recommended Citation Michael D. Murray, Appendix: What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law, 11 Chi. -Kent J. Intell. Prop. 260 (2012). Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol11/iss2/9

This Appendix is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Journal of Intellectual Property by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. Appendix

Complete Listing of Supreme Court and Court of Appeals Cases

Style and Citation Fair Use Outcome Facts Discussion

Campbell v. Acuff- Parody Fair Use 2LiveCrew HipHop group used Campbell changed fair use law in copyright by Rose, 510 U.S. 569 old Roy Orbison rock ballad finding that all 17 U.S.C. § 107 factors were to associated with motion picture be weighed together in case-by-case (1994) fairy tale concerning prostitute determination, no one factor predominates, (Pretty Woman) to make criticism commercial use factor is not dispositive, and a of original. Original title, bass bad score on one factor of fair use can be riff, and some lyrics were outweighed by good scores on other factors. duplicated in the copy. Naïve With parody, purpose and character of use to sentimental lyrics about woman comment on and criticize the original is very walking down street were favorable on the other § 107 factors—parodists replaced with baudy crude lyrics can use famous creative works, use a great deal pertaining to unappealling nature of them to "conjure up the original" and will of prostitute streetwalkers. not have a negative impact on the market for the original. Murphy v. News No Fair Use Murphy owned the copyright to a The cropping served no transformative purpose Millennium Radio news and promotional photo of and created no new meaning, message, or two radio station personalities that expression in the photo, nor did the radio Grp. LLC, 650 F.3d was commissioned by the radio station use the photo in a new context or for a 295 (3d Cir. 2011) station. Sometime later, the radio different purpose than the original. station slightly cropped the photo to remove Murphy’s copyright notice, and otherwise reused the photo without permission for the same news and promotional purposes as the original. Bouchat v. Historical; No Fair Use Bouchat's shield logo infringed by No transformation of the actual Bouchat logo. Baltimore Ravens, Archival Ravens' Flying B Logo. No Logo was displayed as is, without alteration, in transformation found when merchandise and advertising—NFL highlight 619 F.3d 301 (4th Ravens display the logo in films, promos, stadium entertainment. Cir. 2010) commercial films and promos, in spite of the editing and glitzy production values of the films and promos. No transformation meant no fair use in the court's ruling. Bouchat v. Historical; Fair Use Historical and archival display of Different context of display—to show history Baltimore Ravens, Archival logos in corp. headquarters is fair of Ravens franchise—was also a change in use. function and purpose of use. It was 619 F.3d 301 (4th transformative in purpose. Education and Cir. 2010) historical use emphasized Bouchat's work for its factual content, not creative content.

Salinger v. Colting, Comment; No Fair Use Colting wrote "60 Years Later: The “60 Years Later” book was not 607 F.3d 68 (2d Cir. Criticism; Parody Coming Through the Rye" under transformative and was not a fair use of the pen name “John David Salinger's characters, plot events, story arc, and 2010) California” as an unauthorized scenes of the story. The addition of Salinger, sequel to the landmark work of the original author, into the story was held not fiction, J.D. Salinger's "Catcher in to be a significant transformation. The court the Rye." “60 Years Later” rejected the testimony of experts that held that replicated the character of Holden the two works were significantly different in Caulfield, albeit as a 70-year-old, style and purpose—“Catcher” being a work of and other characters, and fiction, and “60 Years Later” being an replicated many sequences of the inventive, scholarly work of literary criticism plot and the story arc of the taking the form of a novel. original work. Although, “Catcher” was held by the court to be semi-autobiographical, and Colting alleged his intention to 2

comment on and criticize and to parody the author, Salinger, and the original work, “Catcher,” the Court of Appeals affirmed the District Court's finding that Colting would not succeed on his fair use defense. Gaylord v. U.S., 595 Transformation No Fair Use U.S. Postal Service issued stamp Court of Appeals focused on the "further F.3d 1364 (Fed. Cir. depicting photograph of "The purpose or different character" of the use Column" soldier sculptures in standards as defined in Campbell, and ignored 2010) Korean War memorial in Wash. the physical transformations in the appearance DC. Sculptor brought copyright of the actual Korean War Memorial compared infringement action. Photo of to the photograph and the stamp, and focused “The Column” sculpture showed exclusively on the purpose of the works, original work covered in snow finding the purpose of the sculpture, the photo, and muted the coloration of the and the stamp to be the same: to depict the work, allegedly creating a new memorial and honor Korean War Veterans. narrative (patrol lost in the snow) Because the purpose of the three was the same, and altering the content of the the court found there was no transformation. original work (cold weary The Court of Appeals also found the coloration soldiers). The Stamp further and "mood" changes did not make enough altered the coloration making the change in the character of the work, which was scene monochromatic and "dreamlike" to begin with. The court found the "colder." Court of Appeals found alternations did not change the character, that the government's use of the meaning, or message of the original sculpture. sculptures was not fair use.

Bridgeport Music v. Transformation No Fair Use Famous George Clinton funk The Court of Appeals affirmed the jury verdict UMG Recordings, anthem, “Atomic Dog,” was of no fair use on the basis that three of the four sampled by hip-hop group, Public fair use factors (all but the first factor, purpose 585 F.3d 267 (6th Announcement, in the song and character of use) weighed against UMG's Cir. 2009) “D.O.G. in Me” on their All defense of fair use. The court held, “'D.O.G. in Work, No Play album. Public Me' is certainly transformative (first factor), Announcement sampled the having a different theme, mood, and tone from refrain “Bow wow wow, yippie 'Atomic Dog.'" But this transformativeness did yo, yippie yea," and the repetition not outweigh the other factors to a degree that of the word “dog” in a low tone of would overturn the jury verdict on the "against voice at regular intervals, and the the great weight of the evidence" standard of sound of rhythmic panting. The review. two songs differed in theme, tempo, and style, characteristics that are partially attributable to the funk genre vs. hip-hop genre of music. The court reviewed the jury verdict finding of no fair use, and affirmed. A.V. ex rel. Transformation Fair Use iParadigms, owner of Turnitin iParadigm's use was held to be transformative Vanderhye v. plagiarism-checking computer in purpose, even with no transformation of service, had fair use defense content. iParadigms' use of the works was iParadigms, LLC, allowing wholesale copying of completely unrelated to their expressive 562 F.3d 630 (4th student essays for purpose of content. The literary or scholastic purpose of Cir. 2009) checking for percentage of non- essays was transformed into a functional, original content (i.e., plagiarism). instrumental database for plagiarism-checking. Essays also were archived for later checking or retrieval. 3

Peter Letterese and Transformation No Fair Use Peter Letterese and Assocs. (PLA) Defendants' use of Big League Sales in their Assocs., Inc. v. sued Scientology organizations course materials falls short of a transformative including World Institute of use. The original book selected, ordered, and World Institute of Scientology Enters. (WISE) to described a number of sales techniques with Scientology Enters., end copying of sales training the purpose of educating its readers to become 533 F.3d 1287 (11th information taken from Big more effective salesmen. The same is true of Cir. 2008) League Sales book owned by defendants' course materials. As the district PLA. Many defenses were court noted, “Defendants' courses and raised—permission and consent, materials merely attempt to provide a user- implied license, de minimis use— friendly method of reading and learning from but did not dispose of copyright [Big League Sales].” The course materials do claims. Fair use defense arose not reshape the instructional purpose or from defendants' allegation that character of the book, or cast the book in a they adapted the course materials different light through a new meaning, into a different format, message, or expression. Although the course incorporated pedagogical tools materials adopt a different format, incorporate such as sales drills, and condensed pedagogical tools, such as sales drills, and the material in the book. Other condense the material in the book, these than these format changes, the changes do not alter the educational character content was not altered, and the of the material taken from the book; they purpose of the materials remained merely emphasize, rather than transform, the the same. overall purpose and function of the book.

Leadsinger, Inc. v. Education; Pubic No Fair Use Leadsinger, manufacturer of No alteration of lyrics or music; no new BMG Music Publ’g, Interest karaoke device, claimed fair use purpose; no new context. No fair use. to copy and display lyrics to 512 F.3d 522 (9th accompany musical compositions Cir. 2008) for which it obtained compulsory 17 U.S.C. § 115 licenses. Zomba Enters., Inc. Education; No Fair Use Panorama produced karaoke disks No alteration of lyrics or music; no new v. Panorama Transformation of copyrighted music and lyrics purpose; no new context. No fair use. without license. Performers Records, Inc., 491 played and recorded the F.3d 574 (6th Cir. compositions, but no lyrics, 2007) composition, or any other changes to the music were made.

Perfect 10 v. Transformation Fair Use Google and others were accused Court found Google's use to be highly Amazon.com, 508 by Perfect 10 of copying and transformative. Court found a completely infringing on Perfect 10's photos different purpose for the images in all three of F.3d 1146 (9th Cir. when Google performed in-line Google's activities. Most importantly, the 2007) linking to images, framing of creation of thumbnail versions for reference in images (without duplication), and internet search results was held to be highly creation and storage of thumbnail- transformative in purpose and context even if size versions of Perfect 10 images there were no physical changes (other than as references in search results. reduction in size and resolution) of the original Only the thumbnails were actual images, and it was held to be highly beneficial copies—duplications in reduced to the public and thus supportive of copyright size of the original images. Other clause and 1st A public policy goals. rights (publication/distribution, Transformation was described as "the central and display) were involved in in- purpose" of the purpose and character of use line linking and framing. inquiry. Search engine use transforms the function and purpose of the original images completely, and is directly analogous to the way a successful parody transforms the original work. Search engine use also changes the context in a highly transformative way producing an entirely new creation. 4

Blanch v. Koons, Satire; Fair Use Famous artist, Jeffrey Koons, took The court found the use to be highly 467 F.3d 244 (2d Transformation Blanch's fashion photo of transformative and fair. Although the use of woman's legs and silk sandals and the images was held not to be parody, and Cir. 2006) inverted the image to place it in a more likely an example of satire, the court new context where it was found the use to be fair because of the displayed with other images of additional artistic meaning and message dangling women's legs and feet created by Koons and the different purpose for overlaying an image of Niagra the use of the image in the new work. The Falls and accompanied by large work was highly transformed, with a colorful images of junk food. completely new meaning, character, and purpose because of Koon's additions to and recontextualization of the original image.

Wall Data, Inc. v. Public Interest No Fair Use L.A. County Sheriff's office There were no physical alterations of the L.A. Cnty. Sheriff's installed more copies of software software. It was used in the same location, than its licenses permitted. same context, and for the same purpose as the Dep't, 447 F.3d 769 Sheriff Dep't programmed original. Transformation was held to be the (9th Cir. 2006) network so that only a certain "primary concern" of the first factor, purpose number of people could actually and character of use. Transformation requires use the software at any given changes to the original work or the use of the time, as many people as it had work in a new context such that the work is actual licenses for. No other transformed into a new creation. Hard drive changes to the software were imaging did not produce any new creation for made. Sheriff Dep't saved money benefit of public. by not having to buy authorized copies or licenses for each desktop. Bill Graham Historical; Fair Use Artistic concert posters and tickets Court described transformative analysis to be Archives v. Dorling Archival; for Grateful Dead were the "most important" part of the purpose and Education reproduced in color but in reduced character of the use analysis. Biographies are Kindersley Ltd., 448 size for heavily pictorial often given fair use status when they copy or F.3d 605 (2d Cir. biography of the band, the redisplay copyrighted historical material in a 2006) Grateful Dead, produced by new format for information, education, Dorling Kindersley (DK). Bill comment, or simple historical-archival uses. Graham owned the copyrights to The physical changes to the images of the the posters. DK had permission posters and tickets (reduced size) and their for most of the material from placement in a new context (timelines that Grateful Dead Productions, its combined original images in visual-textual partner in the project, but not the collage with other graphics and text) in the rights to the concert posters. biographical publication changed their purpose from advertisement and artistic expression to historical and archival purposes. The use of the images in this heavily pictorial biography was likened to a quotation of text in text- oriented biographies.

NXIVM Corp. v. Comment and Fair Use Ross Institute criticized NXIVM The copied quotes were used in a highly Ross Inst., 364 F.3d Criticism materials and methods and copied transformative manner to comment on and portions to quote and comment on criticize the original material. 471 (2d Cir. 2004) them.

Mattel Inc. v. Comment and Fair Use Forsythe, an artist and owner of New context and setting and unusual Walking Mountain Criticism Walking Mnt Prods, depicted depictions of Barbie nude, frazzled, and in Barbie dolls unclothed and in strange juxtaposition with appliances Prods., 353 F.3d 792 unusual settings with kitchen transformed the meaning of the doll's image (9th Cir. 2003) appliances and food preparations. and communicated a parodic purpose of Forsythe claimed he was comment and criticism. As parody, the works commenting on the objectification scored high on fair use factors in favor of of women in society through defendant. New works often build on those iconic figures such as Barbie. that came before, and here the reference was made in a critical context. 5

Elvis Presley Enters. Comment and No Fair Use Passport created comprehensive Biography lacked transformative purpose to v. Passport Video, Criticism biography video set (16 hrs) on justify extent and length of copies. Passport Elvis. Used portions of videos, often used the heart of the original in a 349 F.3d 622 (9th photos, and recordings of Elvis commercial enterprise. Used clips and Cir. 2003) owned by plaintiffs without portions for same basic purpose as original, license or permission. Basically, thus market substitution possible. deft used too much—clips ran too long for intended transformative purpose. Video Pipeline v. Archival No Fair Use Video Pipeline made verbatim Simply copying and compiling in one internet Buena Vista Home copies of two-minute segments of service did not change purpose or evince motion pictures for its own creativity (new purpose, meaning, expression) Enter., 342 F.3d 191 internet database purposes. It did in the copies, so failed on transformation, (3d Cir. 2003) not alter the segments in any way. failed on purpose and character of use, and was The clips functioned exactly like not a fair use. authorized trailers from the copyright owners. Bond v. Blum, 317 Evidence; Public Fair Use Attorneys copied Bond's Although the court did not mention or rely on F.3d 385 (4th Cir. Interest unpublished autobiographical the transformative test, it did hold that the manuscript of "Self-Portrait of a book was used for a completely different 2003) Patricide: How I Got Away with function and purpose (legal evidence) separate Murder" book to use as evidence from the literary and expressive purposes of against Bond in child custody the original, and the use was fair. proceeding. L.A. News Serv. v. News-reporting No Fair Use LA News Serv. had captured Copying and rebroadcasting of the key few CBS Brdcst., 305 video of events of LA riots, seconds of footage from news video was not including the beating of Reginald fair use in spite of news-reporting context. F.3d 924 (9th Cir.), Dempsey. CBS aired footage Montage use combined with trial footage was amended & reh’g without license or permission. slightly transformative, but not enough to denied, 313 F.3d Other defendants aired in a outweigh the misuse for same news purposes 1093 (9th Cir. 2002) montage and in conjunction with as original. trial footage.

Ty, Inc. v. Publ’ns Reference No Fair Use Photographing of Ty Beanie Baby Photography of Beanie Babies for collectors Int'l Ltd, 292 F.3d toys for advertising in collectors guides and catalogs was substitute for original guides and catalogs was not fair copyright owners' complementary derivative 512 (7th Cir. 2002) use. Court (Posner, J.) did not works, and as substitute, was not fair use. apply traditional Campbell fair use analysis, relying instead on economic analysis. Kelly v. Arriba Soft Transformation; Fair Use Arriba Soft Corp. created Thumbnails created and stored for functioning Corp., 336 F.3d 811 Reference; thumbnails of copyrighted images of internet search engine was new purpose and Research found on internet as references in created new meaning for the images copied. (9th Cir. 2003) search results as part of Public purpose (search function, education, functioning of Arriba's internet research) furthered by the limited copying. search engine. Images were not Images were placed in new context for new altered except in reduced size and purpose which was held to be transformative. lowered resolution, but were The incidental copying that took place to make placed in new context for the the thumbnail reference images did not purpose of directing viewers to compete in any way with the creative, artistic the actual location of the original purposes of the original images. images on the internet.

Suntrust Bank v. Parody; Comment Fair Use Author of "The Wind Done Gone" Parody was found in the second work, Houghton Mifflin and Criticism made critical comment on the criticizing the original work. The second work white-centric racist views of transformed the content and purpose of the Co., 268 F.3d 1257 "Gone With the Wind" novel original to create an entirely new work with a (11th Cir. 2001) through a parody adaptation of the new meaning and purpose that was critical of famous novel copying and the original work and its themes and incorporating several of the major prejudices. characters (albeit with altered names) and plot lines and copying portions of the original text and character dialogue from the original work. 6

On Davis v. The Reference No Fair Use The Gap used Davis's Onoculii Davis's Onoculii work was worn as eye Gap, Inc., 246 F.3d work as eye jewelry (eye wear) in jewelry in the manner it was made to be a print ad. The jewelry was used worn—looking much like an ad Davis himself 152 (2d Cir. 2001) without alteration in the might have sponsored for his copyrighted commercial ad. design. There was no transformation in form or appearance, nor in purpose or function. The use was not transformative and not fair. A&M Records v. Single-Copy, No Fair Use Napster facilitated the finding and The fair use discussion touched on the lack of Napster, Inc., 239 Home Use; Public transfer of unauthorized copies of transformation of the music. The music was Interest copyrighted music. Some music copied and used in the same contexts and for F.3d 1004 (9th Cir. was converted from CD or other the same purposes that the original music was 2001) formats to MP3 format, but was created. otherwise copied by Napster's users verbatim in its entirety. Veeck v. So. Bldg. Education; Public No Fair Use Website operator copied the text First opinion found no fair use. There was no Code Cong. Int'l, Interest of two building codes that had transformation of any kind, although arguably been enacted by municipalities for the information and research purposes of the 241 F.3d 398 (5th purpose of posting the text on website were different and the context created Cir. 2001), rev'd on informational website. Text of a different purpose for the laws' text compared other grounds, 293 enacted legislation was the same to the model code. The first opinion was F.3d 791 (5th Cir. as allegedly copyrighted model reversed and the second opinion held that building code and was copied enacted legislation was non-copyrightable, and 2002) verbatim when posted on site. building codes were “facts” which merged with the idea and formula of the legislation within the meaning of the merger doctrine.

Nunez v. Caribbean News-reporting Fair Use Private photographer's modeling The use of the modeling portfolio photographs Int'l News Corp., portfolio photographs of Puerto in a new context and for a new purpose of Rico's Miss Universe candidate news-reporting was transformative. The 235 F.3d 18 (1st Cir. were copied and displayed in photos were "the news story" as opposed to 2000) conjunction with reporting news being used to illustrate an unrelated news about the candidate. The photos story. The photos were newsworthy in and of were not altered and were copied themselves because the candidate appeared verbatim in their entirety. nude or partially clothed in the photos.

Worldwide Church Education; Public No Fair Use Religious works of founder of No transformation of any kind. Texts were of God v. Phila. Interest Church of God sect were at first used in same form for same purposes as licensed for duplication and original. Church of God, 227 distribution, and then withheld F.3d 1110 (9th Cir. from further publication and 2000) distribution. New church, Philadelphia Church of God, continued to duplicate, publish, and distribute the texts without license or permission. Works were copied and republished verbatim. Sony Computer Comment and Fair Use Use of screen shot images in Use of screen shots in comparative advertising Entm’t America, Criticism; comparative advertising. Screen was fair use. No discussion of transformative Comparative shots were only partially test, but images were modified and were used Inc. v. Bleem, LLC, Advertising displayed and in small size. for new function and purpose to compare 214 F.3d 1022 (9th computer emulator's screen shots with original Cir. 2000) console screen shots.

Sony Computer Transformation Fair Use Connectix produced virtual Game The court allowed the interim copying for Entm’t v. Connectix Station emulator program to allow purposes of reverse engineering because it was personal computers to emulate the only means for Connectix to access the Corp., 203 F.3d 596 Sony's PlayStation game console merger doctrine uncopyrightable material (9th Cir. 2000) so as to allow the users of (process and functioning) of Sony's BIOS Connectix's program to play program. The interim copying allowed PlayStation games on their Connectix to create an entirely new computer personal computers without program running on an entirely new platform purchasing and using a Sony (personal computer OS). Although similar in game console. In order to function to Sony's program (i.e., it played reengineer the Sony BIOS code, PlayStation games), the program was a 7

Connectix had to make copies of transformed creation and the interim copying the code without license or was a fair use of Sony's BIOS code material. permission in order to study how it worked. Copies made were only temporary and only for observation and study of the functioning of the computer program. No part of Sony's code was copied or incorporated into Connectix's end product emulator program. Nihon Keizai News-reporting No Fair Use Comline copied Nihon Keizai's Lack of creative alteration or transformation of Shimbun, Inc. v. financial data (on Nikkei index the material, and use in the same contexts and and other information) for its own for the same purposes as the original led to a Comline Bus. Data, bundling and republishing news- finding of no fair use by the court. Repacking Inc., 166 F.3d 65 (2d reporting services. The data was and abstracting of news even for additional Cir. 1999) copied and republished verbatim. news-reporting purpose is not recognized as a Comline prepared abstracts of the proper transformation of the material for fair material but left much of the text use analysis. and information intact. Micro Star v. Transformation No Fair Use Micro Star compiled and sold 300 The court first determined the user-generated Formgen Inc., 154 user-generated levels for levels to be unauthorized, unlicensed expansion of the play in derivative works of the original Duke Nukem F.3d 1107 (9th Cir. Formgen's Duke Nukem 3D video game. Formgen's provision of a level- 1998) game. Formgen had allowed and development kit was not construed to also encouraged the creation of offer a blanket implied license for users to expansion levels by providing a create and own the rights to the levels created level-development kit with the by using the kit. The subsequent bundling and Duke Nukem game. Micro Star repackaging of infringing derivative works did did not do any creation or not transform the infringing works in any alteration of the character and proper way. The levels were created and sold appearance of Duke Nuken and for the same purpose and for use in the same the images and sequences from context as the original. The lack of the original work that was transformation combined with a commercial included in the compiled work purpose led to the determination that the use and the trade dress on the was not fair. packaging of the Micro Star compilation.

LA News Serv. v. News-reporting No Fair Use LA News Serv. had captured In spite of news-reporting context, copyrights Reuters Television video of events of LA riots, news video may not be copied by others including the beating of Reginald wishing to rebroadcast the same material for Int'l Ltd., 149 F.3d Dempsey. Reuters aired and the same purpose of news-reporting. Use of a 987 (9th Cir. 1998) distributed, and rebroadcast small very small portion (a few seconds of footage) portions of the footage without is not fair use simply because of the small license or permission. amount taken if what is taken is significant and more than de minimis.

Infinity Broad. Corp. Transformation No Fair Use Kirkwood created dial-up Retransmission and rebroadcast in new v. Kirkwood, 150 telephone service to rebroadcast medium for slightly modified purposes was not copyrighted radio transmissions a creative, original use of the material, and the F.3d 104 (2d Cir. over the telephone. Various original material was not transformed in a 1998) purposes were offered for the proper manner. Simple repackaging or service—to audition radio talent, retransmission in a new media is not check for placement of transformation and is not fair use. advertising, and more. 8

Castle Rock Entm’t Comment and No Fair Use Castle Rock, owner of the rights The SAT book did not comment on or criticize v. Carol Publ’g Grp., Criticism to the Seinfeld TV program, sued the Seinfeld show, it celebrated the show, and the creators of the Seinfeld its purpose was to entertain its readers—the 150 F.3d 132 (2d Aptitude Test (SAT) trivia book. same purpose for which the original show was Cir. 1998) The book collected and copied created. The different media and format and multiple items of text, character the massive excerpting and reforming of the information, plot, dialogue, and material into trivia questions was held not to be other copyrighted material from transformative. Instead, the court held that the the television show in order to book merely repacked the original material for compile the questions for the a new media format but for the same trivia book. entertainment purpose.

Sundeman v. The Comment and Fair Use Posthumous copying of Copying was held to be fair for purposes of Seajay Soc’y, 142 Criticism; unpublished work for inclusion in comment and criticism, research, and Research; lectures and handouts of literature education. Both the original author and her F.3d 194 (4th Cir. Education professor who commented on and earlier unpublished work were critiqued by the 1998) critiqued the work in her research. second user of the material. The use of the material was transformative in purpose and context if not in content.

Leibovitz v. Parody Fair Use Paramount's movie ad for "Naked The movie ad, although commercial speech, Paramount Pics. Gun 3 1/3" mimicked famous was found to target the original photograph for Leibovitz “Vanity Fair” cover comment and criticism through parody. The Corp., 137 F.3d 109 photo of pregnant Demi Moore by court found that the ad spoofed the serious if (2d Cir. 1998) replacing Moore's head with that not pretentious artistic posing of Demi Moore of comic actor Leslie Neilson. in a "modest Venus" pose and turned the Paramount reshot the scene with a meaning and purpose of the photo on its head different actress but attempted to by replacing the female head of Moore with a replicate the photo image except comic male actor's head. The ad was found to for Neilson's head replacement. be highly transformative in style, subject matter, content, and purpose.

Ringgold v. Black De Minimis Use No Fair Use Ringgold's story quilt was the The court found that the poster-quilt image Entm’t Television, subject of an art poster from the was used without transformation for the exact High Museum of Art in Atlanta, same purpose and context as the original work. 126 F.3d 70 (2d Cir. and the poster depicting the story Thus, no fair use. De minimis use exception 1997) quilt was used as set decoration argument also failed. visible in an episode of "Roc" on BET. The poster-quilt image was seen for no more than a few seconds at a time, and never in a full screen shot, but there was no alteration of the image or appearance of the poster-quilt. Dr. Seuss Ents., LP Parody; Satire No Fair Use Penguin produced self-described In spite of "The Cat Not in the Hat"'s telling an v. Penguin Books "parody" work discussing the OJ entirely new story with an entirely new Simpson trial and its many purpose of spoofing and criticizing the OJ trial USA, 109 F.3d 1394 characters (OJ and his attorneys and the court system, the court made its (9th Cir. 1997) and adversaries) using the same decision on the basis that the work could not style and similar graphic images be a fair use of Dr. Seuss material because it of characters and settings as in Dr. did not target the original work or its author for Seuss's "The Cat in the Hat" work. criticism or comment. Thus, the purpose and The OJ book, "The Cat Not in the character of the work could not be categorized Hat," did not appear to comment as a true parody, but instead was a satire. The on or criticize Theodore Geisel work was largely transformative, but not for a (Dr. Seuss) or "The Cat in the properly accepted purpose. The discussion of Hat" work in any way, but the the transformative test was slight and not in work told an entirely new story depth. The court preferred to dwell on the for an entirely new purpose of distinction between satire and parody, the latter critiquing the OJ trial and the U.S. being fair use and the former being not fair court system. use. 9

L.A. New Serv. v. News-reporting No Fair Use LA News Serv. had captured In spite of news-reporting context, copyrights KCAL-TV Channel video of events of LA riots, news video may not be copied by others including the beating of Reginald wishing to rebroadcast the same material for 9, 108 F.3d 1119 Dempsey. KCAL-TV copied and the same purpose of news-reporting. Use of a (9th Cir. 1997) rebroadcast small portions of the very small portion (a few seconds of footage) footage without license or is not fair use simply because of the small permission. amount taken if what is taken is significant and more than de minimis.

Princeton Univ. Education; No Fair Use Copying of scholarly and literary The educational context of university-course Press v. Mich. Doc. Research works for educational course packet-university bookstore did not insulate packets sold for profit at book the commercial sale of excerpted and Servs., Inc., 99 F.3d stores. Most works were repackaged copyrighted materials. The works 1381 (6th Cir. 1996) excerpted, and all were combined were not transformed other than by cutting and with other materials to make up a recombining the work into packets with other course packet. materials. This "transformation" did not change the fact that the works were created and sold for use in the exact same contexts and for the exact same purposes as the original works.

Allen v. Academic Education Fair Use Defendant's performance of The playing of the games in public contests in Games League of Plaintiff's games in public for not- a not-for-profit educational setting was a fair for-profit educational, academic use for a new purpose of education. Am., 89 F.3d 614 purposes. (9th Cir. 1996) Am. Geophysical Research; No Fair Use Texaco copied, excerpted, and Copying of material from scientific articles, Union v. Texaco, Education; abstracted material from albeit for research, education, or reference uses Reference copyrighted scientific journals for but within a for-profit business setting, was not Inc., 60 F.3d 913 (2d internal distribution within the fair use. Cutting, rearranging, or repackaging Cir. 1995) corporation. the material was not recognized as proper transformation to support fair use.