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Over the past 20 years,
our courts have really revised the way they approach fair use.
The focus has become very strongly on this issue of transformation.
I like to tell people this isn't really a radical revision,
it's not a whole new interpretation.
Courts are still using the four fair use factors and
they almost always use all of them and work through them,
just the way that you and Ann have illustrated for them.
But when they find a transformative purpose, and
that's usually as part of the first fair, fair use factor,
the purpose of the use, the other factors tend to fall in line.
>> [LAUGH] >> That first determination that something
is transformative is incredibly important.
And there have been empirical studies that have shown that when courts determine that
a use is transformative, they are overwhelmingly likely to find for
fair use.
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And this is true even when the amount used is very large, or
when the purpose of the use is commercial.
When the item is being sold.
And you can really see this in the paradigm case of transformative fair use
that the Supreme Court decided 20 years ago.
And that's Campbell v Acuff-Rose Music.
It in that case the Supreme Court determined that the rap
parody version of the song Oh, Pretty Woman, the classic song by Roy Orbison.
The parody version done by the rap group 2 Live Crew was found to be
fair use even though it used a lot of the original song, and
of course it was a clearly commercial use.
2 Live Crew expected and did sell CDs with it.
But because the song was found to be a parody,
the court held that it had transformed the original.
And this, this idea of parody is really interesting to pause on for a minute.
For one thing, it's clearly linked to that illustrative purpose in section 107.
In the fair use, provision of the law, that says that fair,
one of the things fair use supports is criticism and comment.
Parody is clearly an example of criticism and comment.
And then also it reminds us once again.
How important fair use is in defending free speech.
Because this was a case where, in fact, the group Two Live Crew
went to the music publisher we'd like to make a parody of the song Oh Pretty Woman,
and the publisher said of course not,
we're not going to let you do that, this is a big important property for us.
So it was very important for the free speech rights.
The rap group to be able to use the song
in spite of having been turned down for permission.
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It was important to the Supreme Court that this parody version
didn't compete on the market with the original song.
I, it was pretty clear that somebody who wanted to buy a Roy Orbison cd would not.
Pick up 2 Live Crew and say, this'll do.
I'll take this one- >> [LAUGH]
>> Instead.
That's not going to happen.
So there wasn't that kind of market competition but
also there, the court felt that there.
Wasn't a legitimate licensing market precisely because
the owner of the original was unlikely to license a parody and
in this case had specifically refused to do so.
So that, that market harm factor still comes into play.
The court was very comfortable with the fact that a lot of it was used and
that it was commercial because of this transformative purpose and because that.
Meant there wasn't the same kind of marked harm, that they often looked for.
>> Well parody is something that is well protected.
Both as you say, Kevin, in free speech, and if you look at, you know,
a lot of popular TV shows, and political parody.
You know, who would ever give permission for someone to make fun of them?
So, it is-.
>> That's right.
South Park would've been sued- >> Been sued-
>> For every episode.
>> Episode, right. So parody is a very important, factor in,
free speech, and, you know, as transformative fair use and
copyright, and you're right that courts had expanded this paradigm.
It's also important to note, that the four factor
analysis of fair use actually started with a judge, Judge Story-.
>> Mm-hm.
>> In the 1800s, and then became codified in 1976.
So you know, the fact that transformative fair use isn't
necessarily called out in the text of Section 107,
doesn't mean that it isn't a proper application of fair use.
>> It's part of the evolution that Congress told us they expected-.
>> Expected-. >> Would continue to take place.
>> Yeah, so I think it's just important to note that
courts are more often finding transformative fair use.
>> Yeah. >> I think the digital age probably really
has helped facilitate that.
And where courts find that paradigm is typically where there is
a new meaning created.
That would certainly be true in parody.
And sometimes when a new purpose is being pursued.
>> Mm-hm.
Kevin Smith, M.L.S., J.D.Former Director, Copyright and Scholarly Communication
Lisa A. Macklin, J.D.,M.L.S.Director, Scholarly Communications Office
Anne Gilliland, JD, MLSScholarly Communications Officer
