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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  X[ and fourth factor analyses as well. 54 In factor three, verbatim copying in large amounts tends to suggest a nontransformative use. In factor four, transformative use tends to reduce the probability of market harm by market substitution. 55 Especially the Court regarded the relationship of the transformative use and the inference of market harm. The Court argued that the only harm to derivatives that need concern us is the harm of market substitution and there was no evidence that a potential rap market was harmed in any way by 2 Live Crew’s parody rap version. 56 The Court views the Sony case as the one where mere duplication of the entirety clearly supersedes the objects of the original and serves as a market replacement for it, and compares it with the Campbell case where the second use of the song is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. In that sense, as a nontransformative borrowing presumably can act as a substitute for the original, an absence of transformation could serve as a proxy for a determination of market harm under the fourth factor. 57 After Campbell, many court cases explicitly made the link between transformativeness under factor one and market harm under factor four, and the transformative use rule works often as a complementary factor for the market effect factor. 58 This approach clearly reduces the benefit of introducing the productive use/transformative use factor to fair use analysis “in addition to” the four factors. A use of a copyrighted work is already less likely to be considered fair use if the use influences the copyright holder’s market of the work. The underlying assumption is that if the market is affected, it will influence the incentive of the author’s to create works of authorship. In other words, the market effect factor should be considered significant to the extent that the effect discourages author’s productivity and creativity by stifling the author’s incentive to create. Therefore, an important question regards whether Sony and Campbell intended to apply the productive use or transformative use principle even if the use has potential to reduce the incentive to create new works. Lape argues that the fair use doctrine applies where the benefit to society of permitting the unauthorized use 54 Bunker criticizes this as that fair use analysis has been “transformed.” See Bunker, supra note 46, at 9. 55 Id. 56 510 .U. S. at 592-594. 57 Bunker, supra note 46. 58 Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2 nd Cir. 1998); Dr, Seuss Enterprises v. Penguin Books USA, Inc., 109 F.3d 1394 (9 th . Cir. 1997).

Authors: Woo, Jisuk.
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X[
and fourth factor analyses as well.
54
In factor three, verbatim copying in large amounts
tends to suggest a nontransformative use. In factor four, transformative use tends to
reduce the probability of market harm by market substitution.
55
Especially the Court
regarded the relationship of the transformative use and the inference of market harm.
The Court argued that the only harm to derivatives that need concern us is the harm of
market substitution and there was no evidence that a potential rap market was harmed in
any way by 2 Live Crew’s parody rap version.
56
The Court views the Sony case as the
one where mere duplication of the entirety clearly supersedes the objects of the original
and serves as a market replacement for it, and compares it with the Campbell case
where the second use of the song is transformative, market substitution is at least less
certain, and market harm may not be so readily inferred. In that sense, as a
nontransformative borrowing presumably can act as a substitute for the original, an
absence of transformation could serve as a proxy for a determination of market harm
under the fourth factor.
57
After Campbell, many court cases explicitly made the link
between transformativeness under factor one and market harm under factor four, and the
transformative use rule works often as a complementary factor for the market effect
factor.
58
This approach clearly reduces the benefit of introducing the productive
use/transformative use factor to fair use analysis “in addition to” the four factors. A use
of a copyrighted work is already less likely to be considered fair use if the use
influences the copyright holder’s market of the work. The underlying assumption is that
if the market is affected, it will influence the incentive of the author’s to create works of
authorship. In other words, the market effect factor should be considered significant to
the extent that the effect discourages author’s productivity and creativity by stifling the
author’s incentive to create. Therefore, an important question regards whether Sony and
Campbell intended to apply the productive use or transformative use principle even if
the use has potential to reduce the incentive to create new works. Lape argues that the
fair use doctrine applies where the benefit to society of permitting the unauthorized use
54
Bunker criticizes this as that fair use analysis has been “transformed.” See Bunker, supra note 46, at 9.
55
Id.
56
510 .U. S. at 592-594.
57
Bunker, supra note 46.
58
Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2
nd
Cir. 1998); Dr,
Seuss Enterprises v. Penguin Books USA, Inc., 109 F.3d 1394 (9
th
. Cir. 1997).


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