Rebecca Tushnet blogs:


The section of the brief covering transformativeness draws on Blanch v. Koons (see William Patry's blog post, full text of 2nd Circuit decision). One of the interesting things to me about that decision is how the finding in favor of transformative use relies heavily on artist Jeff Koons' own account of his purpose, as stated in an affidavit, in making an artwork that included part of an image appropriated from a fashion spread by photographer Andrea Blanch. This seems to put an enormous amount of weight on the artist's own self-proclaimed, after-the-fact intentions. In an earlier post on the district court decision, Patry acerbically commented:


Everyone seems to agree that judges shouldn't play the role of art or literary critics. In the words of the brief for the Salinger case, "Courts have recognized that fair use must not depend on a single judge’s perception of an artist’s merit but rather on the possibility that a reasonable member of society could perceive the transformative use."

But who are these reasonable members of society? The phrase seems to imply laypersons rather than experts and critics -- the kind of people that Patry suggests could "merely look at [the artist's] work to see if it is, objectively, transformative." I almost get the sense that reasonableness is construed as the opposite of expertise. If it's only those highfalutin' experts with their five-dollar words that can discern a work's transformativeness (and you know those art and literary critic types -- they'll happily argue that up is down and right is wrong if you give them a podium), what's a poor judge, trained only to the law, to do? So a reasonable perception of transformative use is one that your typical judge could at least conceive of, or -- if proposed by, say, the defense in a copyright case -- deem plausible, without special recourse to critical theory or specialized discourse.

So where would this leave subcultural transformative works that rely on community-specific knowledge for legibility? How many "reasonable members of society" outside of specific fan cultures could perceive the transformative nature of vids? If certain kinds of subcultural works require their own forms of subcultural expertise to generate meaning and response amongst their subcultural audiences, how will courts navigate fair use claims? Should courts be predisposed to give greater deference to fair use claims for subcultural appropriations and transformations of mainstream sources? Have they in the past?