Abstract

Since the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., many courts have considered, when evaluating a claim of fair use in copyright, whether the defendant’s use of the plaintiff’s work is “transformative,” which the Campbell Court described as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

In Cariou v. Prince, the Second Circuit shifted the focus of the analysis, both confirming that a work could be transformative even if it did not comment on the original work or its author and stating that the key to the transformativeness analysis is “how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.” The Cariou court’s focus on the reasonable observer might be said to align with a reader-response approach to the transformativeness analysis. The task is to determine whether the second work has “alter[ed] the first with new expression, meaning, or message,” but that determination, in the Cariou court’s view, is dependent not on authorial intent but rather on audience perception.

A grounded sense of the reasonable reader should recognize the value of taking into account questions of context and meaning, including considerations of gender, race, socioeconomic status, sexuality, and privilege, among others. A requirement that the interpretation be “reasonable” can be read to mean that interpretations that the courts or dominant interpretive communities find too transgressive can be deemed outside artistic (and therefore legal) boundaries. The first fair use factor, by focusing on the purpose and character of the use, is asking how the defendant’s work contributes in a different way from the plaintiff’s work to “promote the Progress of Science.” And that, as the Court indicated in Campbell, requires consideration of how the works are received, which requires, in turn, consideration of interpretive communities.

Courts that do not situate themselves as part of an interpretive community, engaging with other observers, risk having their transformativeness decisions seen as a fait accompli, rather than as a reasonable conclusion based on available evidence. This is, I think, the way to give meaning to the concept of a “reasonable observer” or meaning that may “reasonably be perceived” in a world where every interpretative community has the ability to contest meaning but where existing structures may privilege the views of those already seen as more “reasonable.” Putting this engagement on the record recognizes that transformativeness is cause, not effect; that a work is ultimately not what it is but what it does. The result may well be that fair use disputes will be less frequently resolved at earlier stages of litigation if it turns out that courts feel more confident undertaking this task with the benefit of evidence, expert or otherwise, as to the existence of interpretive communities. Fully recognizing that the resulting cost is not the author’s to bear, this paper — a contribution to a symposium on ‘The Discursive Turn in Copyright” at the UC Irvine School of Law — contends that it is likely the better outcome for the development of fair use doctrine.

Document Type

Article

Publication Date

1-2019

Publication Information

9 U.C. Irvine Law Review 343-365 (2019)

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