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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  XX the enrichment of society by promoting more production of works or meant to incorporate other diverse uses of works for personal purposes. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court unanimously adopted the notion of transformative use, citing Justice Blackmun’s dissent and Judge Leval’s article. 37 Campbell concerned whether a rap group 2 Live Crew’s commercial parody of Roy Orbison’s rock ballad song, “Oh, Pretty Woman,” may be a fair use. Acuff-Rose, the record company with the copyright to the original song, had refused to allow 2 Live Crew to include the parody song in the album, although the rap group had offered to pay royalties. 2 Live Crew went ahead and released the parody song, and Acuff-Rose sued for copyright infringement. The district court weighed the four factors and held that the song was a fair use, because it was a parody that took only what was necessary to create the parodic element, and because it was extremely unlikely that the parody song could adversely affect the market for the original. 38 The Court of Appeals for the Sixth Circuit reversed and remanded, in that the song’s blatantly commercial purpose prevents this parody from being a fair use. 39 Citing Sony that every commercial use … is presumptively… unfair, 40 the Court of Appeals argued that harm for purposes of the fair use analysis has been established by the presumption attaching to commercial uses.” 41 The Supreme Court reversed, rejecting the notion that the commercial nature of the use was a definitive factor, let alone that it raised a presumption of unfairness. The Court states, regarding the examples of fair use given in the statute such as criticism, comment, or news reporting, that “the central purpose of this investigation is to see whether the new work merely “supercede[s] the objects” of the original creation (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with expression, meaning, or message; it asks, in other words, whether or to what extent the new work is “transformative.” 42 The Court notes that “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.” 43 It is 37 510 U.S. 519 (1994). 38 Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150, 1154-57 (M.D. Tenn. 1991). 39 Acuff-Rose Music, Inc. v. Campbell, 972 F. 2d 1429, 1439 (6th Cir. 1992). 40 Sony, supra note 7, at 451. 41 972 F.2d. at 1438-1439. 42 510 U.S. at 578-579. (footnotes and citations omitted) 43 Id.

Authors: Woo, Jisuk.
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XX
the enrichment of society by promoting more production of works or meant to
incorporate other diverse uses of works for personal purposes.
In
Campbell v. Acuff-Rose Music, Inc., the Supreme Court unanimously adopted
the notion of transformative use, citing Justice Blackmun’s dissent and Judge Leval’s
article.
37
Campbell concerned whether a rap group 2 Live Crew’s commercial parody of
Roy Orbison’s rock ballad song, “Oh, Pretty Woman,” may be a fair use. Acuff-Rose,
the record company with the copyright to the original song, had refused to allow 2 Live
Crew to include the parody song in the album, although the rap group had offered to pay
royalties. 2 Live Crew went ahead and released the parody song, and Acuff-Rose sued
for copyright infringement. The district court weighed the four factors and held that the
song was a fair use, because it was a parody that took only what was necessary to create
the parodic element, and because it was extremely unlikely that the parody song could
adversely affect the market for the original.
38
The Court of Appeals for the Sixth Circuit
reversed and remanded, in that the song’s blatantly commercial purpose prevents this
parody from being a fair use.
39
Citing Sony that every commercial use … is
presumptively… unfair,
40
the Court of Appeals argued that harm for purposes of the
fair use analysis has been established by the presumption attaching to commercial
uses.”
41
The Supreme Court reversed, rejecting the notion that the commercial nature of
the use was a definitive factor, let alone that it raised a presumption of unfairness. The
Court states, regarding the examples of fair use given in the statute such as criticism,
comment, or news reporting, that “the central purpose of this investigation is to see
whether the new work merely “supercede[s] the objects” of the original creation
(“supplanting” the original), or instead adds something new, with a further purpose or
different character, altering the first with expression, meaning, or message; it asks, in
other words, whether or to what extent the new work is “transformative.”
42
The Court
notes that “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.”
43
It is
37
510 U.S. 519 (1994).
38
Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150, 1154-57 (M.D. Tenn. 1991).
39
Acuff-Rose Music, Inc. v. Campbell, 972 F. 2d 1429, 1439 (6th Cir. 1992).
40
Sony, supra note 7, at 451.
41
972 F.2d. at 1438-1439.
42
510 U.S. at 578-579. (footnotes and citations omitted)
43
Id.


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