Article,
"Transformative" User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?
Vanderbilt Journal of Entertainment & Technology Law, 11 (4): 1075-1139 (2009)
Abstract
In the United States, the line between the type and level of transformation required for a copyrightable derivative work and that required to constitute fair use has not been drawn clearly. With the rise of user-generated content, this question (which arises in two distinct copyright contexts) has become even more important. At the same time, copyright law has generally shied away from defining authorship as a legal concept, preferring instead to develop and rely on the related (but not identical) concept of originality. This has resulted in a low copyrightability threshold that does not adequately account for the fact that most creative works in some way rely on and build upon existing works that often were created by another person and are protected by copyright law. This Article examines the consequences of such vagueness for user-generated content in an international and comparative context. Taking the U.S. position as a starting point, it examines the state of the law in other common law jurisdictions, including the United Kingdom, Australia, and Canada, and considers whether the legal rules in all these jurisdictions' treatment of derivative works and fair use comport with the international treaty framework and related norms. The Article also discusses the ramifications of recent U.S. judicial applications of transformativeness in both the fair use and derivative works contexts, and proposes a clearer, more distinctive set of criteria that should serve to clarify the distinctions between these conceps, and that will also legally recognize the existence of authorship in transformative user-generated content. ABSTRACT FROM AUTHOR; Copyright of Vanderbilt Journal of Entertainment & Technology Law is the property of Vanderbilt University Law School and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
