Title: Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation
Abstract: ABSTRACT-Apple invites us to Rip. Mix. Burn. while Sony exhorts us to make.believe. Digital service providers enable us to create new forms of work-work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement suits and potentially chill much creative activity. This Article examines the impact of copyright doctrine on remixes with an emphasis on crowdsourced projects. Such an analysis is particularly salient at this juncture because consumers are neither as passive nor as isolated as they once were. Specifically, large-scale crowdsourced projects raise issues relating to copyright and fair use on a scope and scale never before imaginable. As such, this Article reflects on the particular problems raised by the growth of crowdsourced projects and how our copyright regime can best address them. We conclude that future legal developments will require a thoughtful and sophisticated balance to facilitate free speech, artistic expression, and commercial profit. To this end, we suggest a number of options for legal reform, including: (1) reworking the strict basis of copyright infringement for noncommercial works, (2) tempering damages awards for noncommercial or innocent infringement, (3) creating an intermediate liability regime that gives courts a middle ground between infringement and fair use, (4) developing clearer ex ante guidelines for fair use, and (5) reworking the statutory definition of derivative to exclude noncommercial remixing activities.INTRODUCTIONThe concept of works in copyright law is inherently problematic. Section 106(2) of the Copyright Act secures for copyright holders the exclusive right to prepare works based upon the copyrighted work.1 The Act then defines a as any work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a may be recast, transformed, or adapted.2 Thus, the very statutory definition of what constitutes a seems to reserve-to the copyright holder-the exclusive right to transform an original work.At the same time, however, a related section of the federal copyright regime says something entirely different. The fair use doctrine, codified in § 107 of the Act, involves a four-part balancing test. Courts have read the first factor-the purpose and character of the use3-to consider whether a particular use is transformative in nature.4 The more transformative the use, the more likely a court is to absolve a defendant from infringement liability. As the Supreme Court has explained, [T]he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright . . . .5Thus, on one hand, copyright's works doctrine seems to grant the exclusive right to engage in transformative use of a to that work's copyright holder. On the other hand, the fair use doctrine seems to suggest that transformative uses of works are precisely the types of works that copyright law should immunize from infringement liability. In short, copyright law sends us mixed messages. This Article analyzes the impact of this inherent tension within the Copyright Act on the practice of creative remixing, with a view toward suggesting legal reforms to attenuate some of the extant ambiguities in the law. …
Publication Year: 2015
Publication Date: 2015-04-01
Language: en
Type: article
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