the heart of the fair use doctrine[].”[1] “[T]he more transformative the new work, the less will be the significance of other factors.”[2] It therefore is not at all surprising that attempts by alleged infringers to characterize their uses of copyrighted works as “transformative” have become a key battleground in copyright litigation, particularly as technological advances provide ever-new contexts in which the uncompensated use of copyrighted works is very attractive. And the law governing such controversies often is far from clear. As noted commentators have observed, courts “appear to label a use ‘not transformative’ as a shorthand for ‘not fair,’ and correlatively ‘transformative’ for ‘fair.’ Such a strategy empties the term of meaning.”[3] Indeed, as will appear, some of our own decisions on the issue are at least in tension with one another.[4]
In these circumstances, a finding of transformative use, while “not absolutely necessary for a finding of fair use,”[5] is “of crucial importance to the fair use analysis.”[6] And as the issue of fair use, in the words of a distinguished panel of this Court that remain apt despite intervening years, is “the most troublesome in the whole law of copyright,” it is one that “ought not to be resolved in cases where it may turn out to be moot, unless the advantage is very plain.”[7] The majority’s unnecessary characterization of the Watch function as “somewhat transformative” has no “advantage,” let alone one that is “very plain.” Indeed, I fear it may contribute to confusion and uncertainty regarding this central concept in the law of fair use. Moreover, it threatens to do so in circumstances in which there is no realistic possibility of further appellate review.[8] The determination of the transformative use issue should be left for a case in which the question necessarily is presented.
- ↑ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
- ↑ Id.
- ↑ 4 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 13.05, at 13-169 (2017).
- ↑ See id. at 13-170.
- ↑ Id. at 13-166.
- ↑ Id. at 13-166 to 167.
- ↑ Deller v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (per curiam) (L. Hand, A. Hand, Patterson, JJ).
- ↑ Dicta, 81 N.Y.U. L. Rev. at 1262.
