Academic journal article Washington Law Review

Content, Purpose, or Both?

Academic journal article Washington Law Review

Content, Purpose, or Both?

Article excerpt


In 2008, Professor Tony Reese presciently told us that the case law on fair use transformativeness favored protecting transformative purpose over transforming content, so that, among other things, exact reproduction could have a very good shot at fair use.1 Since then, defendants who made exact copies with transformative purposes (according to the courts) have done extremely well, while the record of unauthorized transformed content is somewhat more mixed, though also increasingly favorable. Purpose-transformativeness, where a work is reproduced wholesale or nearly so, but in a different context-such as a news report about a controversial artwork that contains an image of that artwork-is regularly enough to justify a finding of fair use. Content-transformativeness, where a work is physically altered, can also lead to a fair use finding where the meaning is changed substantially as a result.

The case law is consistent with a broader cultural recognition of the value of fair use of many flavors. As a founder of the nonprofit Organization for Transformative Works (OTW),2 which works to preserve and protect noncommercial fanworks-including fanworks based on existing copyrighted works-I have a deep commitment to both purpose-transformativeness and content-transformativeness, since fanworks regularly perform both kinds of transformations. I have seen fans exercise their fair use rights with increasing resolve, and the concept of transformativeness has helped them articulate and defend their creations.

Most debates about the proper meaning of transformativeness are really about this larger shifttowards more robust fair use. Transformativeness has indeed become almost synonymous with fairness, as critics of broad fair use findings charge. Yet those critics' underlying dispute is with fairness, not with transformativeness: they are uncomfortable with fair use findings in favor of exact copies, or sometimes in favor of inexact copies made with different but noncritical purposes.

The changing ways in which transformativeness has been invoked provide an example of what Professor Jack Balkin has called "ideological drift," in which "legal ideas and symbols will change their political valence as they are used over and over again in new contexts."3 More broadly, fair use itself has undergone a process of ideological drift, with people disagreeing about whether the meaning of fair use has been fundamentally altered by newer applications, or whether the concept remains the same but the facts to which it has been applied have systematically changed.4 Balkin could have been channeling fair use's current critics when he wrote that "we are likely to see the phenomenon of ideological driftat work when individuals complain that 'a good idea has been taken too far,' or that we must return to the 'original reasons' behind a doctrine or a symbol."5 These disputes matter because legal concepts are both tools that help us understand the world and also themselves contested ground:

The parties fight on a battlefield in which the shape of the terrain itself is a potential prize. Ideological drift, in this sense, is the effect of a deeper cause-the struggle over cultural and political meaning through the practice of politics and persuasion, whose reward is ideological and rhetorical power.6

Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright's broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn't broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners' authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative "purpose" is an illegitimate category. …

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