Vondran Legal®: Copyright Law Essentials - How to Seek Fair Use Rights Through the "Transformation" of an Image, Video, or Other Content.  Call us at (877) 276-5084.

Introduction

One of the most important of the four-factors for the copyright fair use test is whether or not the Defendant TRANSFORMED the original copyrighted work, into something with new meaning or purpose. 

Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 109 (2d Cir. 1998) was a case that discussed transformative use.

Fair use is an "equitable rule of reason," which is to be applied in light of the statute. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). First, we look to the statutory preamble which lists, as being potentially fair uses, use "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." 17 U.S.C. § 107.

Although these categories "have an `illustrative and not limitative' function, ... the illustrative nature of the categories should not be ignored." Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 78 (2d Cir.1997) 

We note that Kirkwood's retransmissions fall into none of these illustrative categories. Next, the statute instructs us to consider:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

and

(4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107(1)-(4).

These factors "are not meant to be exclusive." Harper & Row, 471 U.S. at 560, 105 S.Ct. 2218. "Nor may [they] be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright." Campbell, 510 U.S. at 578, 114 S.Ct. 1164. Fair use "is a doctrine the application of which always depends on consideration of the precise facts at hand," Texaco, 60 F.3d at 916.

The Supreme Court has recognized, "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, 510 U.S. at 579. Since most secondary uses of copyrighted material are commercial, commerciality "has only limited usefulness to a fair use inquiry." 

Since the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc, courts applying the FIRST FACTOR have looked at whether the use is commercial and also whether the new use is "transformative." In deciding this question, courts ask whether the new work: 

• Merely supersedes the objects of the original and supplants it (not transformative)
  
  
• Adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message (transformative)

Transformative works "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." Campbell, 510 U.S. at 579. 

Top 22 Tips to make a copyrighted clip "transformative"

Here are some general tips discussing things you can do to try to satisfy the FIRST-PRONG of the Four-Factor Fair Use Test.  Remember, there must be a significant transformation that goes beyond creating a mere derivative work.  Provide new purpose and meaning to the original content.

1. Change the color, brightness or tint of a photograph
   2. Create a parody of a song or a book
   3. Add additional elements to a photo or video clip (ex. a sound effect, captions, or animated gifs)
   4. Use digital content for criticism or review purposes.
   5. Use the image for news reporting or journalistic purposes.
   6. Creat a meme using the original content
   7. Transform a picture or image by cropping or resizing it significantly, adding borders, etc.
   8.  Use the image as background or backdrop for a transformative work.
   9. Create a collage or composite work by combining multiple images, including the original.
   10. Transform the image into a different medium or format (e.g., converting a photograph into a painting or digital artwork).
   11. Use the image for research or archival purposes.
   12. Transform the image by distorting or abstracting it.
   13. Use the image for transformative fan art or fan fiction.
   14. Modify the image by adding filters or effects to create a different artistic style.
   15. Use the image in a transformative, educational, non-commercial video or film (ex. a documentary).
   16. Transform the image by adding elements in order to create an entirely new narrative.
   17. Use the image for comparative or historical analysis.
   18. Transform the image by incorporating it into a PowerPoint presentation or infographic for educational or informational purposes.
   19. Use the image in a transformative advertisement or promotional material.
   20. Alter the image by removing or replacing certain elements to convey a different message or idea (ex. remove the background and change it).
   21. Use the image as part of a transformative collage or montage.
   22. Alter the image by applying a different artistic style (e.g., converting a realistic image into a pop art or abstract representation).

Contact a Fair Use Copyright Law Firm

Vondran Legal® is a leader in copyright infringement matters and fair use analysis.  We provide opinion letters and litigation defense in cases involving the need for fair use review, applying the four factors to the content at issue. Call us at (877) 276-5084 to discuss. You can also drop us a line through our contact form and we will reach out to you.