Transformation (law) - Application

Application

There is no "bright line test" to determine whether one work supersedes the purpose of another; like the determination of fair use generally, it involves significant judgment calls. However, there is substantial precedent that clarifies the nature of transformation in law.

Generally, use of a work to comment on the work itself somehow will qualify as transformative. Quoting portions of a work to criticize it, as in a book review, is transformative. Likewise, parody is transformative — repurposing a work to mock the work itself or the principles the work represents serves a very different purpose from that of the original work.

Repurposing a work to aid identification of the base work is also generally transformative. In Kelly v. Ariba Soft and Perfect 10 v. Google, the respective courts held that the creation and use of thumbnails to allow users of a search engine to easily browse through images returned by their search was transformative.

Of course, as noted above, no one factor of fair use is dispositive; all must be considered. Even transformative uses can be infringing, if other factors weigh against the defendant. For example, in Rogers v. Koons transformation was not even cited as the court found the use failed to meet any of the purposes in the preamble of 17 USC § 107.