Last week I addressed fair use as an exception to copyright infringement. Among the situations that gave rise to fair use were those deemed transformative. What is a transformative work? As the copyright statute suggests, it is an important consideration that the work neither diminish the value nor damage the market for the original or its derivative. The nature of the use, commercial or not for profit, and the amount used factor into the calculation.
The Kia Soul hamster video with the Lady Gaga Applause cover is a fun example. Although most likely covered (licensed etc. from music publisher) the use is for the purpose of selling autos. The fat hamsters are slenderized at the gym, beautified under hair dryers before arriving in a Kia Soul at the red carpet to wild applause and mugging with their fans.
The video is unlikely to affect the commercial value of, or damage the market for, Lady Gaga Applause recorded music or videos. Instead it’s a parody of Hollywood celebrities tying the music to red carpet adulation. Contrast this with a post to YouTube of the music in its entirety without transformative pictorial content.
The U.S. Supreme Court in Campbell vs. Acuff-Rose Music established that a commercial parody can be a fair use. The case involved a rap song by the musical group 2 Live Crew sung to the words of the Roy Orbison hit, “Pretty Woman.” Often confused with satire, a parody is suffused with humor, a making fun of the original work it uses, and not merely a social commentary that happens to use the work.
Parody is not the only transformative work. Others succeed by using less of the original work. The use of the Ed Sullivan clip of the Four Seasons performance in the Broadway Musical “Jersey Boys,” mentioned in my last blog entry, was also a fair use as it was for social commentary and used only a small portion of the work. As the expansion of media in all forms continues, we’ll see many more challenges facing Courts and Legal Advisors in their attempts to interpret the question of what is a fair use.
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William Tennant 