Transformational use: more than meets the eye?

[NOTE: This is part 1 of a 4-part series on fair use]

Other people have good ideas. Sometimes so good that you want to build on them yourself. That can get you in trouble, or get you a lot of money. It all depends on how you do it.

I've previously written about idea theft, and will return to the topic again. Fair use is in many ways the mirror image of idea theft: it's when you deliberately take someone else's work and use it as a basis for yours. It's permitted, but only under certain circumstances. The first thing to check is whether your proposed use is transformational.

The text of the statute is actually pretty short: step one of the fair use analysis requires you to determine "the purpose and character of the use, including whether such use is of a transformational nature or is for nonprofit educational purposes". But short doesn't necessarily mean easy to understand. I'll unpack it.



Focus on the "transformational" aspect of the section because you're probably not an educational institution (and that's what it takes to qualify for the "nonprofit educational purposes" criterion, at least for now). Now think about a continuum. On one end is a direct copy. On the other end is something completely new. A court doing a fair use analysis is going to ask at which end you fall.

It's almost impossible to do a fair use analysis without looking at a specific situation, and the Acuff-Rose case  gives a convenient set of facts for this: the 2 Live Crew song "Pretty Woman" which was intended to be a parody of Roy Orbison's "Oh, Pretty Woman". It's impossible to do a parody of something without using enough of the original thing that you realize you're in the presence of a parody. And so 2 Live Crew had to make reference to the original Orbison song in order to parody it, which they did by substituting the regular song lyrics about being in love with lyrics about picking up prostitutes.

But you can't just use materials from the original without changing them in some way and claim it's a parody. This is where a lot of people who think they're making a parody actually make a mistake. Like I said the key word is "transformational". You have to use the old thing as a foundation to make something new. And that new thing can't just be a remake of the old. It has to do two jobs at once: it has to both remind a viewer of the old work from which you're doing the borrowing while simultaneously creating something new.

A situation that a friend asked me about recently will show why that's surprisingly hard. He had taken the audio track from a scene in a famous movie and set it to video from Team Fortress 2. (I'd provide a link, but in a minute you'll know why.) In his video he had the characters just standing around, and he cut from one to the other when the voices in the audio track changed. His video got a takedown notice from the studio that released the famous movie, and although he was surprised by this I'm not. He thought this was a parody. But ask yourself: what's new about what he made? There's nothing here that's transformative at all: the visuals are replaced, but the essence of what's going on remains the same.

In comparison, think of a book like "The Wind Done Gone", a retelling of the "Gone with the Wind" story told from the perspective of a slave. It would be impossible to tell this story without referencing the original. But the new book simultaneously reminds you of "Gone with the Wind" while telling a new story that hasn't been seen before. The court found that "The Wind Done Gone" was fair use, and rightly so.

Now it gets fun. Once the use is transformative it's irrelevant whether the original creator likes the transformation or not (at least for this part of the fair use test). This is a big deal to many entertainment brands, which tend to make determinations like "this is a good use" vs. "this one is off-brand". Unfortunately for them that's not really a relevant criterion: if it's fair use then the attitudes of the person who created the original work don't factor into this part of the analysis.

So if you want to use someone else's work as the basis for your own creations, take away two points from the first step of the fair use test:

1. Make sure that whatever you do reminds people of the original work.
2. Make sure that your work is fresh and new.

Does that sound hard? It should, because it is. And there's three more steps in the analysis. Next up: the nature of the original work. That comes Monday.

UPDATE: Now that I've finished the series, here's links to the rest:

• The nature of the original work and how that affects the kinds of things that will be fair use: http://bit.ly/O1I1EJ
• How much use is too much to be fair use: http://bit.ly/SNIPLG
• What it means to say your use "affects the market for the original work" and why this matters for fair use: http://bit.ly/NKOGVo

LINKS:
Legal Minimum idea theft post:
http://legalminimum.blogspot.com/2012/07/three-myths-and-two-truths-about-idea.html
Campbell v. Acuff-Rose Music
http://scholar.google.com/scholar_case?q=acuff-rose&hl=en&as_sdt=2,48&case=16686162998040575773&scilh=0
Suntrust Bank v. Houghton Mifflin (The Wind Done Gone)
http://scholar.google.com/scholar_case?q=%22The+Wind+Done+Gone%22&hl=en&as_sdt=2,48&case=13094222792307527660&scilh=0