Transformation (law)
Encyclopedia
In United States copyright law
, transformation is a possible justification that use of a copyright
ed work may qualify as fair use
, i.e., that a certain use of a work does not infringe its holder's copyright due to the public interest in the usage. Transformation is an important issue in deciding whether a use meets the first factor of the fair-use test, and is generally critical for determining whether a use is in fact fair, although no one factor is dispositive.
In United States patent law
the term also refers to the test set in In re Bilski
: that a patent
-eligible invention must “transform a particular article into a different state or thing.”
case Folsom v. Marsh. In that case, Justice Story ruled that
The standard of "supersed[ing] the use of the original work" would be widely cited as a standard for the degree to which a work was transformative when fair use had become more clearly fixed as a legal principle.
In the Copyright Act of 1976
, Congress defined fair use explicitly for the first time, giving as one factor "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". This factor was later determined to hinge in substantial part on transformation. See, e.g., Campbell v. Acuff-Rose Music, a case in the United States Supreme Court:
Campbell is important in large part because of this statement, ordering that commerciality should be given less weight in fair-use determinations and transformation great weight.
Generally, use of a work to comment on the work itself somehow will qualify as transformative. Quoting portions of a work to criticize it, as in a book review, is transformative. Likewise, parody
is transformative — repurposing a work to mock the work itself or the principles the work represents serves a very different purpose from that of the original work.
Repurposing a work to aid identification of the base work is also generally transformative. In Kelly v. Ariba Soft and Perfect 10 v. Google, the respective courts held that the creation and use of thumbnail
s to allow users of a search engine
to easily browse through images returned by their search was transformative.
Of course, as noted above, no one factor of fair use is dispositive; all must be considered. Even transformative uses can be infringing, if other factors weigh against the defendant. For example, in Rogers v. Koons
transformation was not even cited as the court found the use failed to meet any of the purposes in the preamble of 17 USC
§ 107.
United States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
, transformation is a possible justification that use of a copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
ed work may qualify as fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
, i.e., that a certain use of a work does not infringe its holder's copyright due to the public interest in the usage. Transformation is an important issue in deciding whether a use meets the first factor of the fair-use test, and is generally critical for determining whether a use is in fact fair, although no one factor is dispositive.
In United States patent law
United States patent law
United States patent law was established "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" as provided by the United States Constitution. Congress implemented these...
the term also refers to the test set in In re Bilski
In re Bilski
In re Bilski, 545 F.3d 943, 88 U.S.P.Q.2d 1385 , was an en banc decision of the United States Court of Appeals for the Federal Circuit on the patenting of method claims, particularly business methods. The Federal Circuit court affirmed the rejection of the patent claims involving a method of...
: that a patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
-eligible invention must “transform a particular article into a different state or thing.”
Basis
Like most of the modern fair use doctrine, the doctrine of transformation was heavily influenced by the 1841 circuit courtUnited States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...
case Folsom v. Marsh. In that case, Justice Story ruled that
if [someone] thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.
The standard of "supersed[ing] the use of the original work" would be widely cited as a standard for the degree to which a work was transformative when fair use had become more clearly fixed as a legal principle.
In the Copyright Act of 1976
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
, Congress defined fair use explicitly for the first time, giving as one factor "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". This factor was later determined to hinge in substantial part on transformation. See, e.g., Campbell v. Acuff-Rose Music, a case in the United States Supreme Court:
Under the first of the four 107 factors, "the purpose and Page II character of the use, including whether such use is of a commercial nature . . .," the inquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
Campbell is important in large part because of this statement, ordering that commerciality should be given less weight in fair-use determinations and transformation great weight.
Application
There is no "bright line test" to determine whether one work supersedes the purpose of another; like the determination of fair use generally, it involves significant judgment calls. However, there is substantial precedent that clarifies the nature of transformation in law.Generally, use of a work to comment on the work itself somehow will qualify as transformative. Quoting portions of a work to criticize it, as in a book review, is transformative. Likewise, parody
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
is transformative — repurposing a work to mock the work itself or the principles the work represents serves a very different purpose from that of the original work.
Repurposing a work to aid identification of the base work is also generally transformative. In Kelly v. Ariba Soft and Perfect 10 v. Google, the respective courts held that the creation and use of thumbnail
Thumbnail
Thumbnails are reduced-size versions of pictures, used to help in recognizing and organizing them, serving the same role for images as a normal text index does for words...
s to allow users of a search engine
Search engine
A search engine is an information retrieval system designed to help find information stored on a computer system. The search results are usually presented in a list and are commonly called hits. Search engines help to minimize the time required to find information and the amount of information...
to easily browse through images returned by their search was transformative.
Of course, as noted above, no one factor of fair use is dispositive; all must be considered. Even transformative uses can be infringing, if other factors weigh against the defendant. For example, in Rogers v. Koons
Rogers v. Koons
Rogers v. Koons, , is a leading U.S. court case on copyright, dealing with the fair use defense for parody. The United States Court of Appeals for the Second Circuit found that an artist copying a photograph could be liable for infringement when there was no clear need to imitate the photograph...
transformation was not even cited as the court found the use failed to meet any of the purposes in the preamble of 17 USC
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
§ 107.