Transformativeness - Pop-ups

Pop-ups

The use of pop-up advertising, in which third-party advertisements pop up on a competitor’s Web page and change its appearance to create a derivative work, may present more difficult transformativeness issues. On the one hand, the pop-ups provide the public with additional information about making buying decisions (particularly in the form of price comparisons). On the other hand, they adversely affect the Web page proprietor's interest in the integrity of its Web page and its investment interest in creating and maintaining the page. No court has yet addressed derivative work copyright considerations in terms of how to strike a balance between the competing interests at stake, here, although several courts have found no copyright infringement liability for one reason or another.

An example of promotional advertising for a pop-up company (Gator), illustrating various pop-up techniques for changing the appearance of another firm's Web page is shown in this Flash animation. For an argument supporting the claim that uses such as that of Half.com are transformative, see this When-U promo stored on the Wayback Machine. When-U's argument is based on the financial benefit to consumers when they are steered to cheaper sources for goods and services that they desire.