Transformativeness
Encyclopedia
Transformativeness is a concept used in United States copyright law
to describe a characteristic of some derivative works that makes them transcend or place in a new light the underlying works on which they are based. In computer- and Internet-related works, the transformative characteristic of the later work is that it provides the public with a benefit not previously available to it, which would otherwise remain unavailable. Such transformativeness weighs heavily in a fair use
analysis and may excuse what seems a clear copyright infringement from liability.
The Court's opinion emphasized the importance of transformativeness in its fair use
analysis of the accused infringers' parody of "Oh, Pretty Woman
," which the case involved. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is.
in the Harvard Law Review, Toward a Fair Use Standard, which the Supreme Court quoted and cited extensively in its Campbell opinion. In his article, Judge Leval explained the social importance of transformative use of another's work and what justifies such a taking:
, a parody of Leonardo's Mona Lisa
, and also known as the Mona Lisa With a Moustache, is an example of a highly transformative work that accomplishes its transformative effect with what seems to be a minimum of added material. L.H.O.O.Q. has been described as the most famous derivative work in the world, perhaps because of its widespread use for pedagogic purposes.
Marcel Duchamp created the work by adding, among other things, a moustache, goatee, and the caption "L.H.O.O.Q." (meaning “she has a hot tail”) to Leonardo’s iconic work. These few, seemingly insubstantial additions were highly transformative because they incensed contemporary French bourgeoisie, by mocking their cult of “Jocondisme,” at that time said to be “practically a secular religion of the French bourgeoisie and an important part of their self image.” Duchamp’s defacement of their icon was considered “a major stroke of epater le bourgeois." Thus, it has been said that the “transformation of a cult icon into an object of ridicule by adding a small quantum of additional material can readily be deemed preparation of a derivative work.”
A parodic derivative work based on Duchamp's parodic derivative work is shown at this link to an animated gif. This kind of parodic work could not have existed before the development of modern technology.
and Perfect 10, Inc. v. Amazon.com, Inc.
, the courts find a derivative-work use (such as that of thumbnails in an image search engine, for indexing purposes) transformative because it provides an added benefit to the public, which was not previously available and might remain unavailable without the derivative or secondary use. The Ninth Circuit explained this in the Perfect 10 case:
The Ninth Circuit's treatment of transformativeness and fair use in the Arriba Soft and Perfect 10 cases illustrates different data points on the copyright infringement spectrum, at least with respect to transformativeness and fair use. Arriba Soft was a relatively polar case. The harm to Kelly, the copyright owner, was negligible; it was hardly more than his hurt feelings. Thus, the Ninth Circuit said in its opinion that "Arriba's creation and use of the thumbnails [the derivative work] does not harm the market for or value of Kelly's images." On the other hand, the court found that Arriba's use benefited the public: "Arriba's use of the images serves a different function than Kelly' s use—improving access to information on the internet versus artistic expression." The balance thus tilted strongly in Arriba's favor. This led the Ninth Circuit to be the first court to make the equation highly beneficial to public = transformative, and as the Supreme Court explained in Campbell, the more transformative a derivative use the more likely the use is to be a fair use.
The Campbell Court recognized that the balance may not always be one-sided, as it was in Campbell itself and in Arriba Soft. In the Perfect 10 case the interests were more evenly balanced, for the first time in a derivative work case involving new information technology. Both Google and Perfect 10 seemed to have legitimate interests at stake and support for their respective positions. Thus, there was a finding that "Google’s wide-ranging use of thumbnails is highly transformative: their creation and display is designed to, and does, display visual search results quickly and efficiently to users of Google Image Search." But Google's use had some commercial aspects and was claimed to impair P10's commercial interests. Yet, on balance the Ninth Circuit found that the transformativeness outweighed the other fair use factors because "Google has provided a significant benefit to the public" in facilitating image searches by means of thumbnail images.
An example of promotional advertising for a pop-up company (Gator), illustrating various pop-up techniques for changing the appearance of another firm's Web page is shown in this Flash animation. For an argument supporting the claim that uses such as that of Half.com are transformative, see this When-U promo stored on the Wayback Machine. When-U's argument is based on the financial benefit to consumers when they are steered to cheaper sources for goods and services that they desire.
ruled 2-1 that sculptor Frank Gaylord, architect of the Korean War Veterans Memorial
, was entitled to compensation when an image of the memorial was used on a 37 cent postage stamp, because he had not signed away his intellectual property
rights to the sculpture when it was erected. The appeals court rejected arguments that the photo was transformative.
In 2002 amateur photographer and retired Marine John All was paid $1,500 to use a photograph of his of the memorial on a snowy day for the stamp. More than $17 million worth of the stamps were sold. In 2006, Gaylord enlisted Fish & Richardson
to make a pro bono
claim that the Postal Service had violated his Intellectual property
rights to the sculpture and he should be compensated. The Postal Service argued that Gaylord was not the sole sculptor (saying he had received advice from federal sources—who recommended that the uniforms appear more in the wind) and also that the sculpture was actually architecture
. Gaylord won all of his arguments in the lower court except for one—the court ruled that the photo was fair use
and thus Gaylord was not entitled to compensation. Gaylord appealed and won. The case can now either be appealed to the United States Supreme Court or be damages can be assessed by the lower court.
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...
to describe a characteristic of some derivative works that makes them transcend or place in a new light the underlying works on which they are based. In computer- and Internet-related works, the transformative characteristic of the later work is that it provides the public with a benefit not previously available to it, which would otherwise remain unavailable. Such transformativeness weighs heavily in a 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...
analysis and may excuse what seems a clear copyright infringement from liability.
Campbell
Transformativeness is a crucial factor in current legal analysis of derivative works largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc.Campbell v. Acuff-Rose Music, Inc.
Campbell v. Acuff-Rose Music, 510 U.S. 569 was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use...
The Court's opinion emphasized the importance of transformativeness in its 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...
analysis of the accused infringers' parody of "Oh, Pretty Woman
Oh, Pretty Woman
"Oh, Pretty Woman" is a song, released in August 1964, which was a worldwide success for Roy Orbison. Recorded on the Monument Records label in Nashville, Tennessee, it was written by Roy Orbison and Bill Dees. The song spent three weeks at number one on the Billboard Hot 100...
," which the case involved. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is.
Leval article
The modern emphasis of transformativeness in fair use analysis stems from a 1990 article by Judge Pierre N. LevalPierre N. Leval
Pierre Nelson Leval is a judge on the United States Court of Appeals for the Second Circuit. At the time of his appointment by President Bill Clinton in 1993, he was a United States District Court Judge in the Southern District of New York....
in the Harvard Law Review, Toward a Fair Use Standard, which the Supreme Court quoted and cited extensively in its Campbell opinion. In his article, Judge Leval explained the social importance of transformative use of another's work and what justifies such a taking:
I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.
L.H.O.O.Q.
Marcel Duchamp's L.H.O.O.Q.L.H.O.O.Q.
L.H.O.O.Q. is a work of art by Marcel Duchamp first conceived in 1919. The work is one of what Duchamp referred to as readymades, or more specifically an assisted ready-made...
, a parody of Leonardo's Mona Lisa
Mona Lisa
Mona Lisa is a portrait by the Italian artist Leonardo da Vinci. It is a painting in oil on a poplar panel, completed circa 1503–1519...
, and also known as the Mona Lisa With a Moustache, is an example of a highly transformative work that accomplishes its transformative effect with what seems to be a minimum of added material. L.H.O.O.Q. has been described as the most famous derivative work in the world, perhaps because of its widespread use for pedagogic purposes.
Marcel Duchamp created the work by adding, among other things, a moustache, goatee, and the caption "L.H.O.O.Q." (meaning “she has a hot tail”) to Leonardo’s iconic work. These few, seemingly insubstantial additions were highly transformative because they incensed contemporary French bourgeoisie, by mocking their cult of “Jocondisme,” at that time said to be “practically a secular religion of the French bourgeoisie and an important part of their self image.” Duchamp’s defacement of their icon was considered “a major stroke of epater le bourgeois." Thus, it has been said that the “transformation of a cult icon into an object of ridicule by adding a small quantum of additional material can readily be deemed preparation of a derivative work.”
A parodic derivative work based on Duchamp's parodic derivative work is shown at this link to an animated gif. This kind of parodic work could not have existed before the development of modern technology.
Arriba Soft and Perfect 10
The concept, as Judge Level and the Campbell Court described it, developed in relation to fair use of traditional works: literary works, musical works, and pictorial works. But recently courts have extended this rationale to Internet and computer-related works. In such cases, as illustrated by Kelly v. Arriba Soft CorporationKelly v. Arriba Soft Corporation
Kelly v. Arriba Soft Corporation is a U.S. court case between a commercial photographer and a search engine company. During the case ownership of Arriba Soft changed to Sorceron, the operator of the Internet search engine Ditto.com...
and Perfect 10, Inc. v. Amazon.com, Inc.
Perfect 10, Inc. v. Amazon.com, Inc.
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 was a case in the United States Court of Appeals for the Ninth Circuit involving Perfect 10, Inc., Amazon.com, Inc. and Google, Inc...
, the courts find a derivative-work use (such as that of thumbnails in an image search engine, for indexing purposes) transformative because it provides an added benefit to the public, which was not previously available and might remain unavailable without the derivative or secondary use. The Ninth Circuit explained this in the Perfect 10 case:
Google’s use of thumbnails is highly transformative. In Kelly we concluded that Arriba’s use of thumbnails was transformative because “Arriba’s use of the images served a different function than Kelly’s use—improving access to information on the Internet versus artistic expression." Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. Just as a “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one,” a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.
…In conducting our case-specific analysis of fair use in light of the purposes of copyright, we must weigh Google’s superseding and commercial uses of thumbnail images against Google’s significant transformative use, as well as the extent to which Google’s search engine promotes the purposes of copyright and serves the interests of the public. Although the district court acknowledged the “truism that search engines such as Google Image Search provide great value to the public,” the district court did not expressly consider whether this value outweighed the significance of Google’s superseding use or the commercial nature of Google’s use. The Supreme Court, however, has directed us to be mindful of the extent to which a use promotes the purposes of copyright and serves the interests of the public.
…We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case. … We are also mindful of the Supreme Court’s direction that “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.”
The Ninth Circuit's treatment of transformativeness and fair use in the Arriba Soft and Perfect 10 cases illustrates different data points on the copyright infringement spectrum, at least with respect to transformativeness and fair use. Arriba Soft was a relatively polar case. The harm to Kelly, the copyright owner, was negligible; it was hardly more than his hurt feelings. Thus, the Ninth Circuit said in its opinion that "Arriba's creation and use of the thumbnails [the derivative work] does not harm the market for or value of Kelly's images." On the other hand, the court found that Arriba's use benefited the public: "Arriba's use of the images serves a different function than Kelly' s use—improving access to information on the internet versus artistic expression." The balance thus tilted strongly in Arriba's favor. This led the Ninth Circuit to be the first court to make the equation highly beneficial to public = transformative, and as the Supreme Court explained in Campbell, the more transformative a derivative use the more likely the use is to be a fair use.
The Campbell Court recognized that the balance may not always be one-sided, as it was in Campbell itself and in Arriba Soft. In the Perfect 10 case the interests were more evenly balanced, for the first time in a derivative work case involving new information technology. Both Google and Perfect 10 seemed to have legitimate interests at stake and support for their respective positions. Thus, there was a finding that "Google’s wide-ranging use of thumbnails is highly transformative: their creation and display is designed to, and does, display visual search results quickly and efficiently to users of Google Image Search." But Google's use had some commercial aspects and was claimed to impair P10's commercial interests. Yet, on balance the Ninth Circuit found that the transformativeness outweighed the other fair use factors because "Google has provided a significant benefit to the public" in facilitating image searches by means of thumbnail images.
Pop-ups
The use of pop-up advertising, in which third-party advertisements pop up on a competitor’s Web page and change its appearance to create a derivative work, may present more difficult transformativeness issues. On the one hand, the pop-ups provide the public with additional information about making buying decisions (particularly in the form of price comparisons). On the other hand, they adversely affect the Web page proprietor's interest in the integrity of its Web page and its investment interest in creating and maintaining the page. No court has yet addressed derivative work copyright considerations in terms of how to strike a balance between the competing interests at stake, here, although several courts have found no copyright infringement liability for one reason or another.An example of promotional advertising for a pop-up company (Gator), illustrating various pop-up techniques for changing the appearance of another firm's Web page is shown in this Flash animation. For an argument supporting the claim that uses such as that of Half.com are transformative, see this When-U promo stored on the Wayback Machine. When-U's argument is based on the financial benefit to consumers when they are steered to cheaper sources for goods and services that they desire.
Photos of sculptures
On February 25, 2010, the United States Court of Appeals for the Federal CircuitUnited States Court of Appeals for the Federal Circuit
-Vacancies and pending nominations:-List of former judges:-Chief judges:Notwithstanding the foregoing, when the court was initially created, Congress had to resolve which chief judge of the predecessor courts would become the first chief judge...
ruled 2-1 that sculptor Frank Gaylord, architect of the Korean War Veterans Memorial
Korean War Veterans Memorial
The Korean War Veterans Memorial is located in Washington, D.C.'s West Potomac Park, southeast of the Lincoln Memorial and just south of the Reflecting Pool on the National Mall...
, was entitled to compensation when an image of the memorial was used on a 37 cent postage stamp, because he had not signed away his intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights to the sculpture when it was erected. The appeals court rejected arguments that the photo was transformative.
In 2002 amateur photographer and retired Marine John All was paid $1,500 to use a photograph of his of the memorial on a snowy day for the stamp. More than $17 million worth of the stamps were sold. In 2006, Gaylord enlisted Fish & Richardson
Fish & Richardson
Fish & Richardson P.C. is a national law firm practicing intellectual property law.Fish is the 109th largest firm in the United States. Fish has over 350 attorneys, of which 96 percent are dedicated to intellectual property law. Fish is one of the most sought-after firms for both patent...
to make a pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
claim that the Postal Service had violated his Intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights to the sculpture and he should be compensated. The Postal Service argued that Gaylord was not the sole sculptor (saying he had received advice from federal sources—who recommended that the uniforms appear more in the wind) and also that the sculpture was actually architecture
Architecture
Architecture is both the process and product of planning, designing and construction. Architectural works, in the material form of buildings, are often perceived as cultural and political symbols and as works of art...
. Gaylord won all of his arguments in the lower court except for one—the court ruled that the photo was 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...
and thus Gaylord was not entitled to compensation. Gaylord appealed and won. The case can now either be appealed to the United States Supreme Court or be damages can be assessed by the lower court.