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

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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 Follow this and additional works at: https://scholarship.kentlaw.iit.edu/ckjip Part of the Intellectual Property Law Commons 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.
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