Transformative use and fair use
10.11 United States fair use doctrine, as discussed in Chapter 4, permits limited use of copyright material without acquiring permission from the rights holders. The first of the fairness factors—both in the US fair use exception and the fair use exception proposed by the ALRC—is the ‘purpose and character of the use’. In US law, this essentially concerns whether the use is transformative. On some analyses, whether a use is transformative is the key question in US fair use doctrine.
10.12 A much greater emphasis on transformativeness in US case law followed the influential 1990 Harvard Law Review article by Judge Pierre N Leval, ‘Toward a Fair Use Standard’. The first fairness factor, the purpose and character of the use, Judge Leval said, ‘raises the question of justification’:
I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely ‘supersede the objects’ of the original. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.
10.13 This transformative use doctrine was adopted by the US Supreme Court in 1994, in Campbell v Acuff-Rose, and may now be ‘the prevailing view in fair use case law’. In Campbell, the Court stated:
Although such transformative use is not absolutely necessary for a finding of fair use, ... the 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 ... and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
10.14 Professor Neil Weinstock Netanal’s review of several empirical studies and his own analysis of US case law led him to conclude that, since 2005, ‘the transformative use paradigm has come to dominate fair use case law and the market-centered paradigm has largely receded into the pages of history’.
Today, the key question for judicial determination of fair use is not whether the copyright holder would have reasonably consented to the use, but whether the defendant used the copyrighted work for a different expressive purpose from that for which the work was created.
10.15 Other commentators, though noting this trend, find the results less clear. Ginsburg and Gorman have written that under the first fair use factor,
the courts have indeed given great weight to the transformative aspects of an otherwise infringing work, but the decisions do not form an altogether coherent pattern. Moreover, contradictions have come to riddle the assessment of whether a work is transformative.
10.16 William Patry states that finding a use is ‘productive’ or ‘transformative’ is not ‘essential for a fair use determination, nor is it necessarily the most important factor. The key issue in every case is whether the use is beneficial to society.’
10.17 United States copyright academic Professor Pamela Samuelson has distinguished US fair use cases concerning transformative uses as falling into three categories:
transformative—creating new works that ‘draw upon pre-existing works and transform expression from them in creating new works that criticize, comment upon, or offer new insights about those works and the social significance of others’ expressions’, including parody and satire;
productive—for example, quoting from an author’s writing in a critical biography or taking photographs of sculptures on which an author will be writing a commentary; and
orthogonal—using copyright material in ways different in purpose from the original, for example, copying a photograph in order to generate or report controversy about an event, or copying a book in connection with litigation concerning the author.
10.18 These ‘productive’ and ‘orthogonal’ uses, in Samuelson’s taxonomy, appear to concern uses that have a transformative purpose. Ginsburg and Gorman state that ‘recent cases evidence a drift from “transformative work” to “transformative purpose”; in the latter instance, copying of an entire work, without creating a new work, may be excused if the court perceives a sufficient public benefit in the appropriation’.
10.19 Some important transformative purpose uses of copyright material are considered in the context of ‘non-consumptive’ uses, in Chapter 8. The two concepts overlap. Many non-consumptive uses may also have a transformative purpose. However, some transformative uses that have been found to be fair in the US courts do not appear to be ‘non-consumptive’, for example, using digital copies of books to facilitate access for print-disabled persons.
10.20 Another instructive example of a transformative but consumptive use of copyright material may be displaying ‘thumbnail’ images of copyright photographs in search engine results. In 2007, a US District Court considered this use in Perfect 10 v Amazon, and held that Google’s use of thumbnails was ‘highly transformative’:
Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. ... [A] search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.
10.21 That Google incorporated entire images into its search engine results did not, the Court said, diminish the transformative nature of the use. The Court concluded that ‘the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case’.
10.22 As under US fair use doctrine, some broader concept of transformative use can be expected to emerge from the application of the fairness factors under the ALRC’s proposed fair use exception. Whether Australian courts should follow the recent trend in US case law to put transformativeness at the heart of fair use is an important question, on which the ALRC hopes to receive further submissions.
10.23 This chapter considers the merits of a stand-alone exception for transformative use outside fair use. The ALRC concludes that there should not be a stand-alone exception that does not require consideration of the fairness factors.
 P Leval, ‘Toward a Fair Use Standard’ (1989–1990) 103 Harvard Law Review 1105, 1111.
 N Weinstock Netanel, ‘Making Sense of Fair Use’ (2011) 15 Lewis and Clark Law Review 715, 746.
Campbell v Acuff-Rose Music Inc (1994) 510 US 569, 579 (citations omitted).
 N Weinstock Netanel, ‘Making Sense of Fair Use’ (2011) 15 Lewis and Clark Law Review 715, 768.
 J Ginsburg and R Gorman, Copyright Law (2012), 187.
 W Patry, Patry on Fair Use (2012), 115.
 P Samuelson, ‘Unbundling Fair Uses’ (2009) 77 Fordham Law Review 2537, 2544; P Aufderheide and P Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (2011), Kindle locations 553–555.
 P Samuelson, ‘Unbundling Fair Uses’ (2009) 77 Fordham Law Review 2537, 2548–2549.
 In Australia, some such uses may be covered by the fair dealing exceptions, eg, fair dealing for criticism or review: Copyright Act 1968 (Cth) s 41.
 In Australia, some such uses may be covered by the fair dealing for reporting news and judicial proceedings exceptions: Ibid s 42, 43.
 J Ginsburg and R Gorman, Copyright Law (2012), 187.
The Authors Guild Inc v HathiTrust, WL 4808939 (SDNY, 2012).
Perfect 10, Inc v Amazon.com, Inc, 508 F 3d 1146 (9th Cir, 2007).
 Ibid, .
 Ibid, .