View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Florida International University College of Law FIU Law Review Volume 6 Number 1 Article 10 Fall 2010 The Transformation Test: Artistic Expression, Fair Use, and the Derivative Right Frank Houston Follow this and additional works at: https://ecollections.law.fiu.edu/lawreview Part of the Other Law Commons Online ISSN: 2643-7759 Recommended Citation Frank Houston, The Transformation Test: Artistic Expression, Fair Use, and the Derivative Right, 6 FIU L. Rev. 123 (2010). Available at: https://ecollections.law.fiu.edu/lawreview/vol6/iss1/10 This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact
[email protected]. The Transformation Test: Artistic Expression, Fair Use, and the Derivative Right * Frank Houston “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [art] . .”1 – Justice Oliver Wendell Holmes The fair use doctrine is perhaps copyright law’s most malleable concept. Defined as a privilege allowing the use of copyrighted ma- terial, for limited purposes, without the copyright owner’s consent,2 fair use stands for the proposition that copyright protection is not ab- solute. Copyright law’s purpose is twofold: It protects the remunera- tive interests of authors, and it cultivates a culture of learning and creativity.3 If its protections are too narrow, copyright’s incentives may be inadequate to motivate authors to create; if they are extended too broadly, copyright owners might chill discourse and cultural de- velopment.4 Fair use straddles this divide.