Kim Treiger-Bar-Am (Bar Ilan University – Faculty of Law) has posted Copyright, Creativity, and Transformative Use (In HELLE PORSDAM (ED.), COPYRIGHTING CREATIVITY: CREATIVE VALUES, CULTURAL HERITAGE INSTITUTIONS AND SYSTEMS OF INTELLECTUAL PROPERTY (Ashgate Pub. Forthcoming)) on SSRN. Here is the abstract:
Authors and artists are influenced by and respond to the cultural heritage. As such their creativity relies upon copying and changing elements of prior works. Despite copyright's purpose of fostering creativity, copyright law restricts copies of prior works, and changes to them. The distribution right prevents the production of copies; the integrity right prevents changes to works; and the right to derivative works prevents copies with changes. Yet copyright doctrine provides a defence to authors whose work makes transformative use of prior expression. Under U.S. copyright law transformative use often is seen to satisfy the requirements of the fair use defence, and developments in U.K. law may be seen to support such a defence as well.
This paper explores the transformative use defence, in particular with regard to appropriation art. It is shown that in analyses of the transformative use defence courts utilise a hermeneutic analysis used in free speech case law and in the art world as well, relying on the Reader's understanding of the meaning of the use of prior works. It is put forward that this method of analysis enables courts to accept transformativity in appropriation art, and to further copyright's goal of encouraging and promoting creativity.