1. Fair Use and Transformation, 1990-2016
What now for libraries and archives?

2. The cast
Benjamin Moskowitz

3. Pierre Leval
Judge, District Court for the Southern District of New York
Judge, United States Court of Appeals for the Second Circuit
Program on Information Justice and Intellectual Property AUWC LAW

4. Toward a Fair Use Standard, Harvard Law Review, Vol. 103, No. 5 (Mar

5. V.

6. New Era Publications International, ApS v. Henry Holt and Co., Inc.

8. { 261 )
Anno OBbo
Annre Reginre.

9. “abridgement” or “fair abridgement”
Anne
“abridgement” or “fair abridgement”
Gyles v. Wilcox, 1740

10. Story
“. . . we must 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 work.”
Folsom v. Marsh, (Leval, 1105)

11. “. . . factors to be considered shall include-
(I) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes . . .”
17 U.S.C. § 107

12. 1990 – Toward a Fair Use Standard
“Judges do not share a consensus on the meaning of fair use”
“reactive” or “intuitive”

13. On to transformative use
“First, all intellectual creative activity is in part derivative”

14. Further
“If the secondary use adds value to the original this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society”

15. More
“. . . no transformative purposes, fair use should perhaps be rejected without further inquiry into the other factors.”

16. “Factor one is the soul of fair use.”
And even
“Factor one is the soul of fair use.”

17. Campbell v. Acuff-Rose
Adam Etheridge, CC:BY-SA
Jac. De Nijs / Anefo

18. A transformative hero?

19. Beyond commerciality
“. . . the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.”
“. . . the more transformative the new work, the less will be the significance of other factors . . .”

20. Appropriation Cariou v. Prince
Seltzter v. Green Day Kienitz v. Sconnie Nation TCA v. McCollum

21. Author’s Guild v. HathiTrust

22. Author’s Guild v. Google

23. And now?

24. Of what’s to come ? ? ?

25. Of what’s to come

26. Thanks
Dillon Wackerman