ABSTRACT
While courts do not
consider the aesthetic value of an element of a work in determining whether it
is protected by copyright, they do consider the aesthetic value of the use of a
copyrighted element of a work in determining whether that use is a fair use.
This asymmetry improperly and inefficiently discriminates in favor of copyright
protection and against fair use. Moreover, the fair use transformativeness
inquiry discriminates against marginalized authors, because courts are less
likely to appreciate the aesthetic value of their uses of copyrighted works.
consider the aesthetic value of an element of a work in determining whether it
is protected by copyright, they do consider the aesthetic value of the use of a
copyrighted element of a work in determining whether that use is a fair use.
This asymmetry improperly and inefficiently discriminates in favor of copyright
protection and against fair use. Moreover, the fair use transformativeness
inquiry discriminates against marginalized authors, because courts are less
likely to appreciate the aesthetic value of their uses of copyrighted works.
Courts should apply
the aesthetic nondiscrimination principle to both copyright and fair use. In
other words, “transformative” should just mean “different,” and courts
evaluating a fair use claim should simply ask whether the use changes the
copyrighted work in any way, including context, and should not ask whether that
change is substantial or valuable. While this would substantially narrow the
scope of the derivative works right, it would almost certainly increase social
welfare by encouraging the production of derivative works without materially
affecting the incentives to create works of authorship.
the aesthetic nondiscrimination principle to both copyright and fair use. In
other words, “transformative” should just mean “different,” and courts
evaluating a fair use claim should simply ask whether the use changes the
copyrighted work in any way, including context, and should not ask whether that
change is substantial or valuable. While this would substantially narrow the
scope of the derivative works right, it would almost certainly increase social
welfare by encouraging the production of derivative works without materially
affecting the incentives to create works of authorship.
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Rebecca Tushnet 