Content, Purpose, or Both?

• Publication year: 2021

CONTENT, PURPOSE, OR BOTH?

Rebecca Tushnet(fn*)

Abstract: Most debates about the proper meaning of "transformativeness" in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright's broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn't broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners' authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative "purpose" is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay.

INTRODUCTION ................................................................................ 869

I. LET US NOW PRAISE FAIR USE .............................................. 871

II. THE TRIUMPH OF TRANSFORMATIVE EXACT COPIES .... 875

III. THE CRITICS ............................................................................... 883

IV.WHAT'S NEXT? ........................................................................... 891

INTRODUCTION

In 2008, Professor Tony Reese presciently told us that the case law on fair use transformativeness favored protecting transformative purpose over transforming content, so that, among other things, exact reproduction could have a very good shot at fair use.(fn1) Since then, defendants who made exact copies with transformative purposes (according to the courts) have done extremely well, while the record of unauthorized transformed content is somewhat more mixed, though also increasingly favorable. Purpose-transformativeness, where a work is reproduced wholesale or nearly so, but in a different context-such as a news report about a controversial artwork that contains an image of that artwork-is regularly enough to justify a finding of fair use. Content-transformativeness, where a work is physically altered, can also lead to a fair use finding where the meaning is changed substantially as a result.

The case law is consistent with a broader cultural recognition of the value of fair use of many flavors. As a founder of the nonprofit Organization for Transformative Works (OTW),(fn2) which works to preserve and protect noncommercial fanworks-including fanworks based on existing copyrighted works-I have a deep commitment to both purpose-transformativeness and content-transformativeness, since fanworks regularly perform both kinds of transformations. I have seen fans exercise their fair use rights with increasing resolve, and the concept of transformativeness has helped them articulate and defend their creations.

Most debates about the proper meaning of transformativeness are really about this larger shift towards more robust fair use. Transformativeness has indeed become almost synonymous with fairness, as critics of broad fair use findings charge. Yet those critics' underlying dispute is with fairness, not with transformativeness: they are uncomfortable with fair use findings in favor of exact copies, or sometimes in favor of inexact copies made with different but noncritical purposes.

The changing ways in which transformativeness has been invoked provide an example of what Professor Jack Balkin has called "ideological drift," in which "legal ideas and symbols will change their political valence as they are used over and over again in new contexts."(fn3) More broadly, fair use itself has undergone a process of ideological drift, with people disagreeing about whether the meaning of fair use has been fundamentally altered by newer applications, or whether the concept remains the same but the facts to which it has been applied have systematically changed.(fn4) Balkin could have been channeling fair use's current critics when he wrote that "we are likely to see the phenomenon of ideological drift at work when individuals complain that 'a good idea has been taken too far,' or that we must return to the 'original reasons' behind a doctrine or a symbol."(fn5) These disputes matter because legal concepts are both tools that help us understand the world and also themselves contested ground:The parties fight on a battlefield in which the shape of the terrain itself is a potential prize. Ideological drift, in this sense, is the effect of a deeper cause-the struggle over cultural and political meaning through the practice of politics and persuasion, whose reward is ideological and rhetorical power.(fn6)

Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright's broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn't broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners' authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative "purpose" is an illegitimate category. Part IV looks towards the future, suggesting that purpose-transformativeness is here to stay alongside content-transformativeness, and for good reason.

As in other instances of ideological drift, changing terminology is unlikely to change anyone's substantive agreement or disagreement with the relevant outcomes. Even if we abandoned transformativeness as an overriding fair use category, we would still face the same disputes over which uses should be deemed productive or otherwise fair. I am confident that both content-transformativeness and purpose-transformativeness have important roles to play in the fair use ecosystem. Critics charge that fair use is unpredictable and inconsistent with the rest of copyright law, but-like many a building material-a doctrine can be both flexible and also strong enough to support reliance. So too with fair use. By embracing transformative fair use's broad scope and diversity, we can defend it against critics who argue that transformativeness has become meaningless or contradictory.

I. LET US NOW PRAISE FAIR USE

The political valence of transformativeness, and fair use in general, has changed substantially since the early years after Campbell v. Acuff Rose Music, Inc.(fn7) At that time, copyright low-protectionists like Diane Lenheer Zimmerman were skeptical of Campbell's transformativeness test,(fn8) which elevated transformation-the creation of new meaning, message, or purpose-as a key element of fair use. The concept of transformativeness seemed potentially unstable, especially given the Court's unnecessary and ahistorical distinction between favored "parody" and less-favored "satire."(fn9) I worried that a focus on transformativeness would devalue exact copying, which is often important to particular expressive purposes.(fn10) And Larry Lessig famously described fair use as "the right to hire a lawyer," charging that the doctrine chilled new expression and valuable uses by creating uncertainty.(fn11)

How, then, did fair use go from weak reed to powerful shield in a decade's time?(fn12) As the next Part will explain in more detail, transformativeness developed into an extremely versatile concept as lower courts applied it to situations far afield of the mocking song in Campbell. Defendants won significant fair use cases, and a fair use advocacy bar developed, including public intellectuals defending the rights of people who would rarely litigate a fair use defense.(fn13) My focus in this Part, however, is on the rhetoric surrounding fair use outside of the courts. Very few potential disputes are ever litigated, even in the lawsuit-happy U.S., and therefore claims of right and understandings about the law outside the courts are far more important in practice than the law on the books.(fn14)

The public discourse on fair use changed, in part in response to favorable court decisions, but also in significant part because some activists and institutions emerged as norm entrepreneurs, encouraging people to believe in and depend on fair use for their activities.(fn15) The development of large businesses reliant on fair use,(fn16) nonprofit public interest groups devoted to protecting fair use,(fn17) and activist educators and artists depending on fair use(fn18) interacted with case law to make fair use far more robust and reliable than I once feared.

Today, public intellectuals are happy to explain to the general public that transformativeness protects a wide range of activities.(fn19) A number of academics have identified patterns in fair use cases that can be used to predict outcomes and make judgment calls in ordinary practice.(fn20) Peter Jaszi and Pat Aufderheide's initiative to create best practices in fair use among nonlawyer practitioners in particular fields has seen ever-increasing success.(fn21) The clearest example comes from the statement of fair use best practices for documentary filmmakers, which enabled...