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?

Via giandujakiss : Salinger wins injunction barring U.S. publication of 60 Years Later: Coming Through the Rye (WSJ, NYT)

I took a quick read through the decision [PDF], which hinges on the judge's findings that the new novel is not sufficiently transformative to outweigh other factors supporting a copyright infringement claim (e.g. commerical nature of the use, amount & substantiality of the portion used, potential market harm to the original).

The court rejected the defendants' argument that the new book constituted a parody of the original and was therefore transformative. From what I can see, the judge reasoned as follows:

• Parody must comment on or criticize the original work itself (vs. using the original to parody society in general)
• Parody must be immediately recognizable as such to the average reader (vs. indirect or implied)
• Rehashing or even accentuating themes already present in the original work does not constitute parody
• While parody requires some borrowing from the original (e.g. characters, plot details, style) to be recognizable as such, the amount of borrowing should be limited to that necessary for parody or other transformative purposes
• N.B.: describing your work as a respectful tribute or sequel in interviews and promotional material will undercut your subsequent parody defense

( Infringer in the Rye )

In other words, this interpretation of "transformative" would tend to reward works that have the most immediately combative or critical relationship to their original sources. In this light, fannishness counts against you: in rejecting the parody defense, the judge reasons that "60 Years' plain purpose is not to expose Holden Caulfield's disconnectedness, absurdity, and ridiculousness, but rather to satisfy Holden's fans' passion for Holden Caulfield's disconnectedness, absurdity, and ridiculousness..." [emphasis added], citing statements from the defendants conveying respect and admiration for Salinger and Catcher (and their "status as 'American icons') as further evidence against a parodic purpose.

In this light, fans writing for other fans would be implicitly suspect in the eyes of a court. Fannishness here is incompatible with the muscular, antagonistic work of transformation that verges on the patricidal, the necessary wrestling with an original work rather than "'free riding on another's creations.'" The insufficiently transformative writer is precisely the writer whose work is insufficiently critical of the original, "'which the alleged infringer merely uses to get attention or to avoid the drudgery in working up somethng fresh...'." This sounds very much akin to the "why don't you just create your own characters and write original fiction?" objection to fanfic.

So regardless of whether this particular commercial unauthorized sequel to a work still under copyright merits protection as fair use, the reasoning which the judge applied to evaluating whether and to what degree 60 Years constituted a transformative use are disturbing from the perspective of fanworks and other forms of remix culture.