Transformative User-Generated Content: fair use in U.S. Copyright
di Darerca Tupponi
Creativity is an act of self-expression, its value found in the exchange of creative products within a community. Throughout the course of history, humankind has developed new means of communication to exchange wisdom and art, from the printed press which can be regarded as the catalyst of the conception of modern copyright, to the more recent developments of internet and mass media. Although copyright claims to foster the creative expression of ideas and encourage the production of new knowledge, it seems it rather pursues the interests of large copyright owners, as opposed to promoting smaller content creators in the production of their works.
With the rise of new technologies and phenomena, copyright tries to confront and adapt to these changes, through legislation and jurisprudence. But attempts to modernise copyright in view of the digital society appear stale and obsolete the moment they are enacted, as if it were impossible to keep up with the everchanging landscape of the web and technological developments. Legislators seem not to understand the concerns of creators, in particular those of internet users, and prefer to endorse larger rightsowners and their profits. Even the lawsuits celebrated by user advocates present worrying minutiae, which are not favourable to content creators .
The development of the Internet since its inception has allowed users to tailor their experience based on their personal interests and needs, a flourishing ground for the emergence of various User-Generated Content platforms. UGC has been referred to as a new type of media content, prevalently distributed online, which is produced or created by the public rather than by paid professionals .
Ever eager to contribute to the new digital society, netizens create memes, fanfictions, podcasts, blogs and so on, for others to react to. Consequently, many copyright owners are met with the unseemly discovery of their works being reused by others for the creation of these new works. As such, this raises the question whether these uses are legitimate under the law, as protected by fair use principles, or if they are on the contrary infringing copyright.
The fair use doctrine is perhaps one of the main shelters internet users can find when creating and sharing content online: a legitimate use of copyrighted works to further produce new works, through different mediums and with added meaning, with a more subjective approach to existing works, as is appropriate of the social context of the web which favours reacting and interpreting to what happens in the material world . But application of the principle has been acknowledged as extremely variegated and not consistent from a lawsuit to another, generating the myth of fair use as an unseemly and intricate patchwork of concessions .
The emergence of American fair use has been dated back to 1841 in Judge Story’s judgement in Folsom v. Marsh . By stating that “[We] must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” , Story was acknowledged as the progenitor of the doctrine, the principles being subsequently codified in the Copyright Act of 1976, 17 U.S.C. §107 as the foundation of the modern fair use doctrine.
From a historical perspective, older lawsuits tended not to develop fair use in its different layers, rigidly remaining on the analysis of the four factors of § 107, whereas more recent decisions have given a greater importance to the notion of transformative use, judges often basing their opinion exclusively on it rather than the four factors.
Transformativeness complements the fair use principle and is often the key for fair use inquiries, allowing for a more comprehensive analysis of a supposedly infringing work, as it grants major discretion to judges along with the four factors of § 107.
The notion of a transformative use was first employed by Judge Leval in 1990 in his essay Towards a Fair Use Standard. Leval laments the undisciplined state of the discourse on fair use by defining it as a “disorderly basket of exceptions to the rules of copyright”  led forth by an inability of the courts to develop a specific set of principles and values.
A secondary work created through transformative use must not be a facsimile, a mere replication, of the primary work, and often cannot coincide with the appropriation of a large portion of the copyrighted work . For Leval, transformativeness is equivalent to a bona fide abridgement which can encompass criticism or analysis of the original work, and “may also include parody, symbolism, aesthetic declarations” , and so on. This use must be productive and be employed in a creative manner, the secondary work adding value to the original copyrighted work and having as its goal the advancement of knowledge.
Analysis of fair use case law demonstrates the variegated application of the principle in jurisprudence. From a historical perspective, older lawsuits tended not to develop fair use in its different layers, rigidly remaining on the analysis of the four factors of § 107, whereas more recent decisions have given a greater importance to the notion of transformative use, judges often basing their opinion exclusively on it rather than the four factors .
Subjectivity and case-by-case analysis are essential for fair use findings, cases being subject to each judge’s understanding of the principle, and often resulting in contradicting outcomes . Claiming fair use in the digital context often clashes with other legislation , an example being that of takedown notices issued according to the Digital Millennium Copyright Act .
With common activities taking place more and more often over internet platforms, and the tendency of users to create and share their works online, regulating these practices from a copyright perspective is of utmost importance, without hindering the expansion of these new forms of expression or employment.
The social media experience, wherein every aspect of mundane life is shared with innumerable other users, has created friction with copyright laws that are outdated and do not arise to meet their original purposes anymore.
Bearing in mind that circulation of knowledge goes along with the enhancement of the creative activity that copyright intends to protect, legislation enacted in the last decades tends to favour large copyright owners in their quest for greater profits and control over how works are distributed and enjoyed, rather than encourage smaller copyright owners and third-party users, which are often left unable to fend themselves against greedy lawsuits.
A balance should be attained between the requests of large copyright owners and those who wish to actively engage in the sharing of knowledge and creativity. User-oriented legislation should be enacted to meet the needs and demands of end users. From education to simple recreation, copyright must hold the interest of the many as opposed to the interests of the few. Perhaps the very nature of copyright, its initial creation as a monopoly and exclusive right, is incompatible with more participatory communities such as those created in online circles.
Regulating every aspect of online life provides more hassles than rewards and is ultimately futile, if the main goal of these laws is that of limiting and removing activities in favour of big stakeholders, rather than finding common ground between all participants. It must not be forgotten that, since the creation of interactive internet, online communities have always found a way to circumvent legislation they deem inconvenient, and that the vastness of the Web does not allow for a uniform reach of the law at times.
Websites offering infringing content pop up continuously over the internet: as soon as one is shut down, another one with the same functions and content appears with a different domain.
The notion of transformativeness greatly enhances the creation and circulation of works, but legislation such as the DMCA may halt the creative process found on the Web 2.0. Production of UGC cannot be constantly followed by lawsuits or takedown of works, as it ultimately leads to users not pursuing their production anymore . Nevertheless, the interests of copyright owners must not be dismissed and need to be safeguarded, but perhaps the means through which they are being currently protected are not adequate to the rapid changing landscape of the internet and its communities.
Blanket bans of websites and content is not an appropriate measure to tackle infringing behaviour. It is essential to provide users with knowledge regarding copyright issues and the possibility of employing the fair use principle when wanting to create UGC in a legal way. In recent times, web communities have started to forcibly self-regulate on these issues, moderating content sharing and flagging infringing content, as well as educating both newcomers and veterans on the correct etiquette to employ when sharing their works.
Nevertheless, illicit content still circulates online, to the dismay of copyright holders. Employing a filtering system would pose the risk of lawful content being blocked among infringing ones, as software cannot fully distinguish on the subjective nuances present in the works uploaded . Another concern would be that of misusing filtering software to pursue censorship of ideas and opinions.
As the internet becomes the new dwelling of economic exchanges, from advertisements to online markets, to online labour, and so forth, any copyright legislative measure should consider these new characteristics. From a legislative perspective, new measures must be enacted, modernised and perhaps not too confining, involving all parties as stakeholders. Although a clear and concise definition is necessary, fair use and transformativeness are perhaps an opening towards a more balanced approach to copyright and circulation of knowledge.
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 Daugherty T., Eastin M. S., Bright L., Exploring Consumer Motivations for Creating User-Generated Content, Journal of Interactive Advertising, 8(2), 2008, 16-25. https://www.tandfonline.com/doi/abs/10.1080/15252019.2008.10722139;
 Lessig L., Remix – Making Art and Commerce Thrive in the Hybrid Economy, Bloomsbury, 2008;
 Aufderheide P., Jaszi P., Reclaiming Fair Use – How to Put Balance Back in Copyright (2nd ed.), The University of Chicago Press, 2018;
 Folsom v. Marsh, 9 F. 342 (Circuit Court for the District of Massachusetts 1841);
 Folsom v. Marsh;
 P. N. Leval, Towards a Fair Use Standard, Harvard Law Review, 103(5), 1990, 1105-1136. http://www.jstor.com/stable/1341457; Leval, op. cit.;  Leval, op. cit.;
 The Authors Guild Inc., et al. v. Google, Inc., 804 F.3d 202 (United States Court of Appeals for the Second Circuit October 16, 2015);
 Notable comparison between the judgements in Rogers v. Koons, 960 F.2d 301 (United States Court of Appeals for the Second Circuit 1992) and Blanch v. Koons, 467 F.3d 244 (United States Court of Appeals for the Second Circuit 2006) with Cariou v. Prince, 714 F.3d 694 (United States Court of Appeals for the Second Circuit 2013);
 Rossi v. Motion Picture Association of America, 391 F.3d 1000 (Unites States Court of Appeals for the Ninth Circuit 2004);
 The Digital Millennium Copyright Act (DMCA) was signed on October 28, 1998, implementing two World Intellectual Property Organization (WIPO) treaties from 1996, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. U.S. Copyright Office, The Digital Millennium Copyright Act of 1998 – U.S. Copyright Office Summary, December 1998 https://www.copyright.gov/legislation/dmca.pdf;
 Tushnet R., User-Generated Discontent: Transformation in Practice, Columbia Journal of Law & the Arts, 31(4), 2008, 497-516, https://ssrn.com/abstract=1146461;
 Reymond M. J., op. cit.