This essay, written for a symposium on fair use sponsored by the Columbia Journal of Law and the Arts, offers an alternative theory of the concept of transformativeness in the fair use analysis in copyright law. Drawing on literary reader-response theory, the essay suggests that courts might determine whether a claimed fair use is transformative by considering not whether the defendant has engaged in certain activities with respect to the copyrighted work but, rather, whether the defendant's work engages with a different discursive community from the plaintiff's work.
Previous analyses have, not surprisingly, focused on section 107's directive to consider the purpose and character of the use as a suggestion to evaluate not how the work is perceived or interpreted but what the defendant creator intended or hoped to achieve. But virtually all work building on or incorporating another work is transformative to some extent because all creative expression is, to some degree, representational. Thus, if the goal of the transformativeness inquiry is to determine whether the second work has contributed a new expression, meaning, or message, then it might be more fruitful to ask the transformativeness question from the reader's perspective. By considering the degree of transformativeness to align with the amount of interpretive distance that the defendant's use of the plaintiff's work creates, courts may reach different, and more appropriate, results with respect to categories of expressive work that have occasionally been deemed not transformative enough: appropriation art, in which a work is incorporated wholesale or nearly so, and satire, in which the target of the defendant's work is typically something other than the plaintiff's work.
By suggesting that virtually everything is transformative, I do not mean to suggest that nothing is infringing. But shifting the focus from author to reader may serve to remind us both of the limits of transformativeness as a key to fair use and of the fact that facilitating dissemination of multiple meanings of the same work can achieve the goal of copyright law just as well as the dissemination of multiple works. Thus, if we are to retain transformativeness as a relevant answer, let us at least ask the right question - as Foucault suggests, not Who is speaking? but Who is listening?
Laura A. Heymann, “Everything Is Transformative: Fair Use and Reader Response,” Copyright Cortex, accessed July 16, 2020, https://copyrightcortex.org/research/everything-is-transformative-fair-use-reader-response.