Fair Use: Making Sense of Transformative Use

In this presentation, attorney Sekou Campbell provides a primer on fair use, a statutory exception to the protected rights that originated with courts’ equity concerns relating to overbroad protections under copyright law. 

With that background established, Mr. Campbell turns to the frequently discussed and oft-misunderstood “transformative use” doctrine, originally discussed in Judge Pierre Leval’s Harvard Law Review article “Toward a Fair Use Standard.” The presentation compares decisions relating to fair use and derivative works and examines some silent factors courts appear to consider when making fair use determinations as a matter of law. 

This is a subject ripe for review by the Supreme Court as there appears to be some conflict among the Circuits and confusion among jurists and attorneys alike on the contours of “transformative use.” This introductory presentation adds some clarification, at least until the Supreme Court provides greater certainty.

Learning Objectives:

I.     Identify the four fair use factors courts use and apply to fair use defenses

II.    Apply the derivative works protected right to infringement scenarios

III.   Distinguish between derivative works (that infringe the first user’s work) and transformative use (that is fair use)

IV.   Strengthen a basic understanding of copyright and the interests it protects

V.    Gain familiarity with the First Amendment’s role in copyright fair use