Higher education is one of the many lands where copyright questions flourish and esoteric responses don't. If you live in this land, as I do, your actions relative to using copyrighted materials for teaching, learning, scholarship, and research are constrained by a number of (somewhat) inflexible realities:
1) Faculty, staff, and students need to use copyrighted content to produce quality courses, learning experiences, and research.
2) The vast majority of materials used for these purposes are purchased, licensed, or original works of university members.
3) While many are aware at some level that copyright law may intersect with their professional efforts and they want to behave lawfully - they have neither the time nor the tools to continuously successfully navigate the maze of copyright law and court decisions.
4) Money is tight, making fair use all the more critical.
However, if you know nothing else about fair use, you know that it is not designed to spit out quick, definitive answers, especially to the increasingly complex scenarios being generated by rapidly evolving technology. Nevertheless, definitive answers are still hoped for, especially if the answer facilitates the activity as a reasonable fair use.
Transformative Uses As Fair Uses
As budgets get tighter (or nonexistent), education (a favored use anyway) looks ever more longingly at fair use to accommodate the few uses or works we haven't already paid for. The current trend in court cases involving copyright infringement and fair use defenses has focused the courts' fair use analyses (evaluation of the four fair use factors) on whether or not the defendant's use of or purpose in using the plaintiff's work was or was not transformative. Indeed, the court's opinion on whether or not the defendant's use was transformative enough has become pretty much the deciding factor as to whether or not the use was fair and, therefore, not infringing. This emphasis on transformative use holds true (for the most part) even when the entire work is used, even when the work itself has not been altered, and even when the use is commercial.
If such generalizations as I have just made are taken at face value and severed from the case facts themselves, one could see how nearly every use could be maneuvered into a category of "transformative" use and, therefore, justified. I've heard the suggestion that copying and posting entire scholarly journal articles into online courses could be characterized as a transformative use because the author of the article wrote it for colleagues' information and education, not for students. That stretches the notion behind transformative use, including some questionable assumptions about the original author's purpose(s).
There is also the obvious question about the intersection or potential overlap between a "derivative work" and the "transformative" use.
Since these rather broad generalities about transformative use tend to spread like wildfire, because they tell people exactly what they want to hear, a closer look is warranted.
First, what is a derivative work and what is a transformative use? The Copyright Act defines a derivative work as a "work based upon one or more pre-existing 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." Making a derivative work is one of the exclusive rights of a copyright holder. Note, in particular, that the definition of a derivative work even includes any other form in which a work may be ...transformed. Also note, though, that it refers to a transformed work - a transformation of the content itself - but not necessarily a "transformative use." So a work could be transformed but not actually transformed for a "transformative purpose."
Hmmm. What, then, is a "transformative purpose?" The most quoted definition or description comes from Justice Story in the Campbell v. Acuff-Rose decision (the "Pretty Woman" case) wherein he asks whether the new work merely "supercedes the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new meaning or message?"
So how do the courts reconcile the concept of a work 'transformed' so as to constitute a potentially infringing derivative work with the trend towards finding fair use where a work has been used for a transformative purpose?
In order to get a handle of some sort on this area, I researched case law and law review articles. The clearest and most informative analysis for me was found in a law review article by Anthony Reese in The Columbia Journal of Law & Arts entitled "Transformativeness and the Derivative Work Right" (31 Colum. J. L. & Arts 467 (2008). I highly recommend it and I credit Reese with much of what I will summarize from here on.
After thoroughly reviewing dozens of cases, Reese concludes that "the appellate courts do not view fair use transformativeness as connected with any transformation involved in preparing a derivative work, and that in evaluating transformativeness the courts focus more on the purpose of a defendant's use than on any alteration the defendant has made to the content of the plaintiff's work."
So, the concepts are separate: transforming the work has to do with the derivative work right; transformative use has to do with the defendant's purpose in utilizing the work, whether or not the original is altered or not and figures into the fair use analysis.
Reese then reviews the courts' treatment of the four possible scenarios:
1. Transformed work and transformative purpose
2. Unaltered work and transformative purpose
3. Transformed work but no transformative purpose
4. Unaltered work and no transformative purpose
The first, not surprisingly, generally results in a finding of fair use and the last in a finding of infringement. It's the two middle scenarios that are of most interest. He quotes the Ninth Circuit as stating "even making an exact copy of a work may be transformative as long as the copy serves a different function than the original." (Perfect 10 case) Nearly all the cases where a transformative use was found resulted in a finding of fair use. Conversely, if there was no finding of a transformative purpose, even if the original had been altered, the cases concluded no fair use. (like the Seinfeld Trivia book case).
The case that interested mo most, from the point of view of faculty inserting works into their online classes and then trying to assert a transformative purpose argument was Infinity Broad Corp. v, Kirkwood. In that case, the defendant marketed subscription access to live radio broadcasts. His claimed purpose was "informative" because he theoretically was marketing access to subscribers so they could evaluate talent, advertising, programming and so forth. He asserted this was a different purpose from the radio station's entertainment purpose. The court acknowledged that the purposes were different, but difference alone did not necessarily make the second purpose a transformative one. Instead the court found Kirkwood's purpose non-transformative "because it involved 'neither new expression, new meaning nor new message' and instead "merely repackages or republishes the original.'" (from the Reese article)
This strikes me as awfully close to some suggestions I mentioned regarding faculty using scholarly articles to teach online because their purpose was instruction and the original purpose of the articles was communication with other scholars.
It also follows, as Reese suggests, that one should exercise caution in imputing a specific and/or single intent or purpose to the original author. It may well be that the author had multiple motivations behind creation of her work. You may also be wrong and/or cross the line into presumptuousness when you decide all by yourself, the creator's motivation for making the work in the first place.