Prof. Doug Lichtman, UCLA School of Law
October 15, 2014

Nearly 25 years ago, Judge Pierre Leval published what would become an enormously influential article on copyright’s fair use doctrine.  The Leval article emphasized that an unauthorized use of copyrighted materials is more likely to be a fair use if it is “transformative”; that is, an unauthorized use is more likely to be fair if it is a productive use that is in some way meaningfully different from the original work in terms of its message, meaning, function, or purpose.  Leval quite reasonably recognized that there is a policy argument in favor of allowing transformative work, because transformative work has the potential to benefit society, whereas there is at best only a weak argument in favor of non-transformative work, because non-transformative work basically offers nothing to the public beyond what the public already had.

While this test for transformation is in my view helpful, I have long railed against the way some courts seemingly forget that this consideration is only one of several important questions that must be asked in fair use analysis.  Indeed, from my perspective, the key questions that underlie fair use analysis are simply: “Should this accused infringer have asked permission?” and “Should this accused infringer have paid?”  It might be that, in some cases, a transformative use should be allowed without permission and without payment, for instance if we think that society ought to subsidize the use because of its new message or purpose, or if we think that the only way to get the new use is to have it exist without explicit permission.  Just to be concrete, an example in the first category might be some important political statement for which society might reasonably be willing to sacrifice a few of the benefits that copyright holders would otherwise enjoy in order to encourage additional creation and distribution of the valuable, new political statement; and an example in the second category might be critical book reviews or parodies, two types of derivative work that might not exist if thin-skinned authors could simply refuse to allow them.

In a sliver of an opinion issued on Sept. 15, Judge Easterbrook joined the fray.  Easterbrook wryly notes that the question of “just how ‘transformative’ the use must be” is “not one of the statutory factors”; he remarks that, while the “Second Circuit has run with the suggestion,” the Seventh Circuit “think[s] it best to stick with the statutory list.”  Ouch.  Easterbrook along the way specifically calls out the Second Circuit’s recent decision in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), which Easterbrook rightly sees as a decision where the arguable transformative nature of the accused infringing work was allowed to overwhelm what should have been a more complicated conversation about why the unauthorized user failed to ask permission, and what would have happened if permission and payment were required.  (My quick answer: The unauthorized user there did it for convenience and self-interest, and enforcing the copyright would in no way have impoverished society.)

Will Easterbrook’s opinion open the door for a renewed inquiry into the degree to which “transformation” ought to be considered in fair use cases?  I suspect so.  And thus I consider this little seven-page decision to potentially be the most important copyright decision of the year, in that it finally arms copyright attorneys with the competing citation they have long needed in order to point out that fair use analysis is not simply a hunt for works with new meanings, new purposes, and serving new audiences – we have a word for that, it turns out: derivative work – but instead a richer inquiry into why some uses ought to be allowed even if the original copyright holder would otherwise object, or demand payment.

The original Leval article is Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).   Judge Easterbrook’s response is Kienitz v. Sconnie Nation, LLC (No. 13-3004) (7th Cir. Sept. 15, 2014).