I heard that there is another way to interpret the fair use doctrine besides the four factors. Can you tell me more?

Transformative use (also called transformativeness or tranformation) is a relatively new addition to fair use law, having been first raised in a Supreme Court decision in 1994. (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994.). A derivative work is transformative if it uses a source work in completely new or unexpected ways. Importantly, a work may be transformative, and thus a fair use, even when all four of the statutory factors would traditionally weigh against fair use!

Parody: Parody is one of the most clearly identified transformative uses, but any use of a source work that criticizes or comments on the source may be transformative in similar ways. Legal analysis about this kind of transformative use often engages with free speech issues.

New Technologies: Courts have sometimes found copies made as part of the production of new technologies to be transformative uses. One very concrete example has to do with image search engines: search companies make copies of images to make them searchable, and show those copies to people as part of the search results. Courts found that those thumbnail images were a transformative use because the copies were being made for the transformative purpose of search indexing, rather than simple viewing.

Other Transformative Uses: Because transformative use is a relatively new part of copyright law, it is still developing. Many commentators suggest that audio and video mixes and remixes are examples of transformative works, as well as other kinds of works that use existing content to do unexpected and new things. There is a lot of room for argument and interpretation in transformative use!

How did we get from the four factors to transformative use?

In 1990, Judge Pierre N Leval published Toward a Fair Use Standard in the Harvard Law Review. This article argued that the first factor (purpose and character) was the most important when determining fair use. He stated that “the use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.”

This shift from the four factors to transformative use has become the primary deciding factor in fair use legal cases, but continues to evolve. More recently, legal scholars distinguished US fair use cases concerning transformative uses as falling into three categories:

• transformative—creating new works that ‘draw upon pre-existing works and transform expression from them in creating new works that criticize, comment upon, or offer new insights about those works and the social significance of others’ expressions’, including parody and satire;
• productive—for example, quoting from an author’s writing in a critical biography or taking photographs of sculptures on which an author will be writing a commentary; and
• orthogonal—using copyright material in ways different in purpose from the original, for example, copying a photograph in order to generate or report controversy about an event, or copying a book in connection with litigation concerning the author.

How does this relate to education?

When using media in the classroom, it may not be enough to have students creating with small portions of a important work, as determined by the four factors. By applying the transformative use interpretation of fair use, learners can now use, recreate, modify, transform, and publish works to meet educational goals.

Recently, a group of scholars at American University and other colleagues in many fields have been working to develop codes of best practices in fair use. Rather than attempting universal guidance, these best practices are deeply tied to specific contexts of use. Rather than spelling out clear-cut rules, the best practices provide suggestions, compare common activities, and are largely based on input from members of the community of users. The various Best Practices in Fair Use that exist are also not legally binding, but do better than hard-and-fast guidelines at acknowledging the flexible (and yes, uncertain) nature of fair use.