Fair Use: Derivative Works and Transformative Works
Anyone with a basic working knowledge of copyright and fair use law is familiar with the balancing act represented by, on the one hand, the rights of copyright owners and, on the other, and the rights of users of copyright protected works. Copyright owners possess exclusive though not absolute rights. Those exclusive rights are: the right to reproduce the work, distribute the work, create derivative works, display the work, and perform the work. Consistent with the Constitutional mandate to “promote the progress of science and the useful arts,” users have rights too and these rights include the right to use works in a manner that is consistent with the rules of fair use. Generally, copyright owners retain control over the creation of derivative works while users possess the right to create transformative works under the rules of fair use.
Derivative works are defined under the Copyright Act of 1976 as follows:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work” (17 U.S.C. § 101).
In other words, a derivative work doesn’t add anything new- it doesn’t build on the original but merely recasts it. The owner of the underlying original copyright protected work controls the creation of such works. A copyright owner may personally undertake the creation of a derivative work or authorize someone else to do so. Similarly, a copyright owner may just say no. There is no legal obligation to allow others, even for a fee, to create derivatives of the original. Of course, this changes once the copyright expires on the underlying work. When a copyright expires, the work goes into the public domain and the right of the original owner to prevent the creation of the derivative works expires as well.
Transformative works are different. They are not defined by the Copyright Act of 1976; instead, they are discussed as part of fair use analysis. The fair use rules allow the use of copyright protected works owned by others as long as the use is for one of the fair use purposes (e.g. news reporting, criticism, comment, research, teaching and scholarship) and satisfies the fair use factors. The factors are: 1. The purpose of the character of use; 2. The nature of the work used; 3. The portion used; and 4. The impact of the use on the market for and value of the work. Whether a new work qualifies as transformative is considered when analyzing the first factor-the purpose or character of the use. In educational environments, analyzing the purpose and character of the use is typically approached by evaluating whether the use is commercial or noncommercial. Because educational uses are usually noncommercial and therefore weigh in favor or fair use, transformative uses are rarely discussed. Nevertheless, it bears noting that the U.S. Supreme Court is on record in declaring the significance of concluding a use is transformative.
Although [a finding of] transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright and 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. Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994).
Transformative uses that result in the creation of a transformative work are similar to derivative works in that they are based on the original. However, they are different in that they satisfy the underlying purpose of copyright law by building on the original and thereby “promoting the progress of science and the useful arts.” Simply put, transformative works create something new. Again, as noted in Campbell v. Acuff-Rose Music, Inc, “The central purpose of this investigation is to see...whether the new work merely [supersedes] the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is transformative.” Consequently, copyright owners do not control transformative uses that result in the creation of transformative works. Anyone can lawfully undertake a transformative use of anther’s copyright protected work even before the copyright expires. No permission is required from the copyright owner.
Being aware of the rules governing transformative uses provides fertile ground for those with the creativity and time to transform existing works in to something new.