Transformative or just taking? Lawyers struggle to define fair use in wake of Google Books case

When federal judge Denny Chin declared last fall that Google’s(s goog) decision to scan 20 million books did not violate copyright law, the ruling came as a new high water mark for “transformative use”  — the idea, loosely defined, that it’s okay to use someone else’s creative work if the new work is different enough from the original.

“Google’s use of the copyrighted works is highly transformative,” wrote Chin in a signature passage of a ruling that used the word “transformative” more than a dozen times.

In an era where digital technology is making images ever easier to manipulate, this transformative trend is likely to continue. But not everyone is happy about it. Some artists worry that the idea is making nearly any use a “fair use,” while lawyers wonder if the notion of “transforming” is too simplistic in the first place.

From “Pretty Woman” to 20 million books

“Transformativeness has become the heart of the fair use analysis,” Judge Chin told the New York City Bar City Association on Monday night in a panel moderated by Judith Prowda, a lawyer and Senior Faculty at Sotheby’s Institute of Art.

While exploring the question “Has Transformative Use Gone Too Far?”, Chin and others traced the history of a legal trend that began more than two decades ago when the Supreme Court ruled that 2 Live Crew’s raunchy repetition of the song “Pretty Woman” didn’t violate copyright, in large part because the rap version was a “transformative” parody.

More recently, the concept was front and center in a court fight between artist Shepard Fairey and the Associated Press over who owns the rights to Barack_Obama_Hope_posteran iconic Barack Obama “Hope” poster. And right now, the high art world is in a spat over whether “transformative use” permits artist Richard Prince to deface photographs he found in a book about Rastafarians.

Panelist and lawyer Dale Cendali, who represents visual artists, lamented that a recent court ruling over the Prince images could allow the artist to earn millions from sales to his clients, who include Beyonce and Brad Pitt, without compensating the original photographer.

“[Transformative use] shouldn’t be a litmus test to swamp the rest of the test,” said Cendali, referring to fair-use rules set out in the Copyright Act.

Under the test, the transformative question is technically just one part of the first prong of a four-stage inquiry but, as in the Google Books decision, it can appear dominant on its own.

No harm, no foul?

“Transformativeness has provided greater clarity, greater coherence and greater consistency than what we had before,” said panelist Richard Dannay, a lawyer who has argued high-profile publishing industry cases. In one such case, he persuaded an appeals court that a publisher’s inclusion of thumbnail versions of Grateful Dead posters in a coffee table book was a “transformative” fair use.

His remark about what “we had before” alludes to earlier legal tests that suggested that any type of commercial use involving an original work was off-limits — a standard that came to be seen as too strict, and one that would be simply unworkable in today’s digital remix culture.

Dannay also raised questions about of the effect of a new use, such as Prince’s, on the potential value of the copyrighted work. This is the fourth factor of the four-part test. It looks at market value and, along with the first one (“purpose of the work”), is considered to be the most important in determining if something is fair use.

In the case of Prince’s art, Dannay pointed out that the new works didn’t undercut the market for the original work, which was a book of photographs by Patrick Cariou.

“While he disfigured the subjects, did that interfere with any market that Cariou had? I didn’t like it, but it didn’t appear to interfere,” observed Dannay.

Judge Chin likewise expressed discomfort with the Prince case, asking if too much value was being placed on money, and whether questions of artistic control and an ability to stop one’s work from being defaced should also be considered.

Such questions of artistic dignity may not be relevant when it comes to copyright, however. As panelist and Berkeley law professor Pamela Samuelson observed, such concerns are a question of “moral rights,” which are a European concept and largely foreign to U.S. law. She suggested that Prince’s art did not simply involve defacing Cariou’s photographs; his prints can also be seen as a social commentary on idealized portraiture.

Rasta screenshots, Richard Prince

Too much transformative

The idea of “transformative use,” and fair use in general, today provides an essential safety valve against a U.S. copyright regime that provides draconian damages and whose terms now run well over a century.

All the same, though, the word “transformative” itself can be an unsatisfactory way to explain current fair use law. In the case of Google Books, for instance, did Google really transform the books — or did it just scan them? Likewise, in the case of the Grateful Dead posters, it appeared that the publisher simply shrank them rather than “transformed” them.

This doesn’t mean that those decisions were wrong, but that “transformative use” is an odd way to justify them. According to Samuelson, the conceptual confusion here arises from the fact that there are different types of fair use, and that “transformative” doesn’t explain them all. She pointed to her scholarly work to emphasize that fair use cases like Google Books, or a more recent one involving recorded calls, are not about transformation, but rather reflect an older concept of fair use known as “productive use.”

Samuelson’s point is that the rap parody in “Pretty Woman,” art like the prints of Richard Prince, and Google’s Book scanning may all be fair use — but that “transformativeness” doesn’t have to be the deciding factor in declaring they don’t violate copyright.

Her remarks may not satisfy some artists and lawyers who feel that copyright law is failing to protect their income or their dignity, but they do shed light on the old but still contentious topic of fair use.