Study On Transformative Use Of US Copyright Law

In recent years, a series of cases such as the appropriated works of collage, Google’s digital library, and search engine thumbnail images have aroused controversy over the concept and application of "transformative use" in the United States. The term "transformative use" first appeared in Campbell v. Acuff-Rose Music, Inc., which cited Leval’s work. Leval, in his article on the fair use standard, argues that the first factor, the purpose and character of use, raises the question of justification of fair use, a defense that turns primarily on whether the use is transformative. In Campbell, the Supreme Court unanimously adopted the notion of transformative use. The Court stated, regarding the examples of fair use given in the statute such as criticism, comment, or news reporting, that the core purpose of the examination is to see whether the new work merely "supersedes the objects" of the original work, or include something new, with a different purpose or other characters, changing the prior work with new expression, meaning, or message. Following Campbell, some legal scholars proposed that "transformative use" could be an important basis for fair use analysis of digital works of authorship. But drawbacks and misapplications of the concept of the transformative use created a great deal of legal confusion and disagreements. The notion of transformative use has increasingly been emphasized by lower courts in subsequent fair use cases. Lower courts have not always been able to articulate clear criteria for what precisely constitutes a transformative use."Transformative use" is essentially an exclusive right to control the use of the protected works under the Copyright Act. Anyone without the permission of the right holders or legal permission to use the work will constitute an infringement. In specific cases, however, because the propose or intention to create or use original works differs from right holders, which promotes the development and distribution of science, culture and the arts, or achieves a freedom of expression, the use of prior work will not be considered infringement.China also sees a lot of "transformative use" these years, however, there is no relevant legislation or judgments on this matter. A provision of "other circumstances" in fair use has been included into the draft amendments to the Copyright Act, and the "three-step test" stemmed from the implementing regulations of the copyright law for new types of uses whether it is a transformative has been introduced as well. Whether a type of use constitutes fair use need to be examined in specific cases by the courts. However, the three-step test is a bit too abstract; for instance, the meaning of "normal" and "not unreasonably prejudice" is quite unclear. In legal practice, the Chinese courts have applied United States’ four elements for fair use. In order to accurately identify what type use is transformative and possible to constitute a fair use, clear legislation or judicial interpretation of "transformative" and its relationship with the fair use criteria are expected. Therefore, it is necessary to study the "transformative use" in United States legal system for reference and further perfect our country’s legislation or judicial interpretation on fair use.During the 20 years for judicial practice in United States, the main issues of the "transformative use" are as follows: first, what is transformed; second, the "transformative use" might erode the exclusive right of derivative works to the copyright owner; third, whether or not "transformative use" necessarily constitutes fair use.This article examines on "transformative use" of United States copyright law regarding to the three core issues, trying to clarify the connotation of "transformative use", the relationship between transformative and derivative rights, as well as its weighing against other factors among fair use four element criteria. Finally, this article bases its analysis back to China and explores possible reference and inspiration in legislation or judicial application.