Thinking about Fair Use: Transformativeness
In 1994 the Supreme Court unanimously found that 2 Live Crew's song "Pretty Woman" did not infringe the copyright in Roy Orbison's song "Oh Pretty Woman" despite the fact that the parody song drew from the "heart" of the work of the original, used large amounts of a creative work, was a commercial use, and had negative effects on the market. It would seem in this case that all four factors would weigh against 2 Live Crew. The Court found the use fair, however, because 2 Live Crew's use was transformative. This idea had been present in legal scholarship for some time but it was this case (Campbell v. Acuff-Rose Music) that cemented the concept. The Court finds that when source work is used in new and unexpected ways, the use is more likely to be fair. Some people view "transformativeness" as a kind of "fifth" fair use factor, other see it as a way of understanding the interplay between the four factors.
In a sense, we can view "transformation" as the goal of fair use. Fair use exists in order to give citizens the ability to take existing creative works and use them to create new knowledge, understanding, art. We find, when evaluating fair use, it is helpful to keep "transformativeness" in mind as we look at the picture that our four-factor analysis gives us.
