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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  XW productive use principle, the principle continued to be given authority. 30 After Sony, the predominant meaning of productive use has been use that produces a new work. 31 The term productive use has been employed primarily to connote a use that changed the copied materials in producing a new work. 32 Transformative Use in Campbell The term transformative use first appeared in Campbell, which cited Leval’s work. Leval, in his famous article on the fair use standard, argues that the first factor, the purpose and character of use, raises the question of justification, and the question of justification of fair use defense turns primarily on whether and to what extent the challenged use is transformative. 33 He used the term of transformative use basically as a synonym for productive use, in that “the use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.” 34 Leval distinguishes between simply restating or repackaging and the secondary use that adds value to the original. He states that “if the quoted matter is used as a raw material, transformed in the creation of new information, new aesthetics, new insights and understandings – this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.” 35 He listed examples of transformative uses such as criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it, parody, symbolism, aesthetic declarations, etc. 36 Thus, Leval is concerned about the social benefit as the copyright law’s purpose, but it is not entirely clear whether he focuses on 30 Laura G. Lape, Transforming Fair Use: The Productive Factor in Fair Use Doctrine, 58 A LBANY L. R EV . 677 (1995). 31 Basic Books, Inc. v. Kinko’s Graphics, 758 F. Supp. 1522, 1530 (S.D.N.Y. 1991) (stating that the defendant’s use was a “mere repackaging” and did not “transform” the copied materials); American Geographical Union v. Texaco, Inc., 802 F. Supp. 1, 11 (S.D.N.Y. 1992); Weissman v. Freeman, 868 F. 2d 1313, 1324 (2nd Cir. 1989) (stating that the use for the intrinsic purpose works against the finding of a fair use). 32 Lape, supra note 30, at 712. 33 Leval, supra note 14, at 1111. 34 Id. 35 Id. 36 Id.

Authors: Woo, Jisuk.
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background image
XW
productive use principle, the principle continued to be given authority.
30
After Sony, the
predominant meaning of productive use has been use that produces a new work.
31
The
term productive use has been employed primarily to connote a use that changed the
copied materials in producing a new work.
32
Transformative Use in Campbell
The term transformative use first appeared in Campbell, which cited Leval’s
work. Leval, in his famous article on the fair use standard, argues that the first factor,
the purpose and character of use, raises the question of justification, and the question of
justification of fair use defense turns primarily on whether and to what extent the
challenged use is transformative.
33
He used the term of transformative use basically as
a synonym for productive use, in that “the use must be productive and must employ the
quoted matter in a different manner or for a different purpose from the original.”
34
Leval distinguishes between simply restating or repackaging and the secondary use that
adds value to the original. He states that “if the quoted matter is used as a raw material,
transformed in the creation of new information, new aesthetics, new insights and
understandings – this is the very type of activity that the fair use doctrine intends to
protect for the enrichment of society.”
35
He listed examples of transformative uses such
as criticizing the quoted work, exposing the character of the original author, proving a
fact, or summarizing an idea argued in the original in order to defend or rebut it, parody,
symbolism, aesthetic declarations, etc.
36
Thus, Leval is concerned about the social
benefit as the copyright law’s purpose, but it is not entirely clear whether he focuses on
30
Laura G. Lape, Transforming Fair Use: The Productive Factor in Fair Use Doctrine, 58 A
LBANY
L.
R
EV
. 677 (1995).
31
Basic Books, Inc. v. Kinko’s Graphics, 758 F. Supp. 1522, 1530 (S.D.N.Y. 1991) (stating that the
defendant’s use was a “mere repackaging” and did not “transform” the copied materials); American
Geographical Union v. Texaco, Inc., 802 F. Supp. 1, 11 (S.D.N.Y. 1992); Weissman v. Freeman, 868 F.
2d 1313, 1324 (2nd Cir. 1989) (stating that the use for the intrinsic purpose works against the finding of a
fair use).
32
Lape, supra note 30, at 712.
33
Leval, supra note 14, at 1111.
34
Id.
35
Id.
36
Id.


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