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tto icon TRANSFORMATIVE USE: (MAYBE NO) MORE THAN MEETS THE EYE


INTRODUCT-AMUNDO

Anyone who has spent time searching for their favorite songs on YouTube has invariably come across one or two fan-uploaded videos with captions or disclaimers stating that no copyright infringement or commercial use is intended; or that the fan takes no credit for the song and all rights remain with the artist and production companies. While these legal-sounding statements may be true, they are legally ineffective. The fan is no more absolved from potential liability or permitted to upload and share the song freely, than someone who makes printed copies of the latest bestselling novel, includes a “no credit taken” disclaimer, and then distributes the copies for free outside a bookstore.

On the other end, those who have skimmed the fine print of an album license or hung around for the post-movie credits may have questioned why certain names of people and companies are listed when neither their appearance nor their contributions were readily apparent. In many cases, the listings are the result of the album and movie producers obtaining permission--typically in the form of a license--to use the copyrighted materials of the respective creators and owners. Understandably, obtaining such permissions or licenses reduces the producers’ legal risks involved in borrowing or sampling copyrighted content, but such precautions may be an unnecessary expenditure of time and money. If the producers’ use of the copyrighted work satisfies certain criteria, then no permission or license is needed.

This article will discuss briefly those criteria, or factors, that judges consider in determining whether one’s use of a copyrighted work is infringing (i.e., requires permission or a license) or whether one has made “fair use” of the copyrighted work (i.e., no permission or license needed). Part I will briefly discuss U.S. copyright law and the four factors constituting the fair use doctrine; and, in light of the recent film release of Ready Player One, which by one account includes 138 pop culture references, or “easter eggs”--mostly from the 80s,1 Part II will explore the “transformative use” component of the first fair use factor and its potential applications, and describe how a work, like Ready Player One, might be considered a transformative use.

PART I: COPYRIGHT LIFE MOVES PRETTY FAST

A. By the Power of the Constitution, Congress has the Power

The historical roots of U.S. Copyright Law were planted in Philadelphia back in 1787, wherein a Constitutional Convention was called to strengthen a toothless federal government. Rather than fixing the faulty system of government under the Articles of Confederation, however, the Convention replaced it with what would become our system of government today under the U.S. Constitution.2 Within this new system, Congress was imbued with several express, or enumerated, powers. Among them was the power for Congress to grant “authors and inventors the exclusive right to their respective writings and discoveries” for a “limited time” in order “to promote the progress of science and useful arts.”3 In order to promote such progress, Congress codified two incentive-based systems, patents 4 and copyrights,5 which award inventors and authors, respectively, with certain exclusive rights in exchange for their contributions. This article will focus on the copyright system.

In the U.S., copyright protection is available from the moment an (a) original work of authorship (b) is fixed in a tangible medium of expression.6 For a piece to be an “original work of authorship”, it must have been independently created by a human author7 and possess a minimal degree of creativity.8 Given the courts’ reluctance to be arbiters of creativity, the “requisite level of creativity is extremely low.”9 According to the Supreme Court, “no matter how crude, humble or obvious” their “creative spark” might be, the vast majority of works will satisfy the creativity requirement.10 With regards to (b), a work is “fixed in a tangible medium of expression” when its embodiment in things like books, records, movies, paintings, etc., “is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”11 In other words, a work must have some permanence that would allow for it to be shared with (and appreciated by) others. Once a work satisfies both (a) and (b), it is protected by copyright. There is no need to register the work to receive copyright protection.

Given the immediate availability of copyright protection and the ease of meeting its requirements, most people are copyright owners whether they know it or not.12 Unlike patents, however, copyright protects expression not ideas. While copyright protection is available for a book about one’s weird science research and resulting invention, it does not protect the invention itself or any other facts and ideas. In order to protect an invention, one needs to pursue patent protection. Nonetheless, a copyright owner does possess the exclusive right and authorization:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

13 Note, though, that in order to assert one’s rights against another who may be using one’s work without permission, the work must be registered with the U.S. Copyright Office.14

B. What’s Fair Use? Judges Mullet Over

The 1787 Constitutional Convention’s incentivizing of authors to create and share their original works with the public in exchange for a limited exclusive right, or copyright, in order to promote the progress of science and the useful arts, recalls the centuries’ old adage that progress is obtained by building upon the works of those who came before us.15 As one Supreme Court justice observed: “In truth, in literature, in science, and in art, there are, and can be, few, if any things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”16 Accordingly, while the copyright system should ensure sufficient protections for authors and their copyrighted works to continue incentivizing their pursuit and contributions, these incentives should not unduly restrict others’ use of said works. Otherwise, the constitutional purpose behind the system’s enactment is stalled by its means. Recognizing the need to balance the interests of copyright owners against those of the public and copyright’s constitutional purpose, judges, for several decades, held that certain unauthorized uses, which might otherwise be infringing, were permitted. This judge-made doctrine based on those certain, unauthorized “fair” uses was later codified in 1976.

Unfortunately, despite its codification, there are no brightlines that dictate when a use is fair.17 Given the breadth of works in which copyright protection can subsist, each copyrighted work and unauthorized use must be analyzed on a case-by-case basis. Fortunately, copyright law does provide the following four factors to help determine whether a specific unauthorized use should be treated as fair:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

18No single factor is necessarily determinative, and neither is a numeric majority--“3” is not a magic number. All factors must each be explored and weighed against the copyright’s constitutional purpose.19

1. Factor 1: Purpose and Character of Use

It’s Tricky as the factor’s mention of commercial or nonprofit use separates this into two inquiries. The first is whether the unauthorized use is pursued for financial gain. Although fair use does not bar one from making money off one’s unauthorized use of a copyrighted work, such a pursuit will not weigh in favor of a fair use finding. Fair use arbiters will treat more favorably those who use the copyrighted work for educational and nonprofit purposes, i.e., those who are using the work to promote the progress of science and the useful arts.

The second inquiry is whether the unauthorized work “merely supersedes the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”20 In short, this inquiry asks whether the unauthorized work is “transformative.” According to the Supreme Court, “the more transformative the new work, the less will be the significance of the other factors.”21 Given the significant weight the Court places on this inquiry, what, then, are the sort of additions that make a work transformative? Part Two-in below to find out.

2. Factor 2: Nature of the Copyrighted Work

Generally speaking, this factor assesses the creative characteristics typical of the type/category of the copyrighted work.22 The substance of this factor is probably best illustrated by Justice Stevens, in Sony Corp. v. Universal City Studios where he stated: “informational works, such as news reports, that readily lend themselves to productive use by others, are less protected than creative works of entertainment.”23 Although there are exceptions (likely driven by the other factors), unauthorized use of news reports, research journals, cookbooks and white pages is more likely to be fair use than unauthorized use of fictional books, paintings, music albums or movies.

3. Factor 3: Amount and Substantiality of Portion Used

Partially objective, partially subjective and substantially non-dispositive, this factor illustrates the difficulty in attempting to develop any brightline systems for fair use. Conceptually, the greater the unauthorized taking of the copyrighted work, “the greater the affront to the interests of the copyright owner.”24 For example, while the unauthorized copying of the text of a newspaper article may likely be considered a fair use, copying the entire newspaper, including its arrangement of articles, formatting and other stylistic choices will likely not.

On the other hand, one could make use of only a small proportion of a work--metrically speaking, but still lose in a fair use determination. Take Iron Butterfly’s In-A-Gadda-Da-Vida, for example, a song that spans over seventeen minutes. Despite its length, many only need three to five seconds to identify this song. These three to five bass riff-filled seconds are arguably the “heart” of the work or what “most readily conjures up” the work in one’s mind,25 and their unauthorized use will likely weigh against a fair use finding.

4. Factor 4: Effect on the Potential Market

This factor weighs the impact that an unauthorized use has had, or might have, on the market of the copyrighted work. If the unauthorized use is harming the market for the copyrighted work as well as the market for a derivative work, then copyright owners are losing on one of the benefits provided for under the incentive-based system. Consequently, this factor was once considered “the single most important element of fair use.”26 The Supreme Court has since clarified its position on this and reiterated that all factors are to be explored and weighed against copyright’s purpose in promoting the sciences and useful arts. Nonetheless, market harm to the copyright owner will tend to weigh against a finding of fair use.

Since the 1787 Constitutional Convention laid the basis for copyright in the U.S., Congress has worked to adapt to the different mediums beyond simple “writings” in which expression is being fixed to works of authorship--only in recent history adding “software” as an eligible work. In addition to more works of authorship becoming eligible for copyright protection, the length of protection has significantly increased. In 1790, a copyright protection and its associated exclusive rights lasted just 28 years (14 years initially, with option to renew for another 14 years). Today, copyright protection for some works can extend for as long as the author’s life plus an additional seventy years. Given the ever narrowing scope of public accessible works, understanding and applying fair use becomes all the more vital in ensuring that the original Constitutional Purpose of Copyright is properly carried out.

Part II. WHAT IS TRANSFORMATIVE USE?

A. We Keep Using That Word, But Do Others Think It Means What We Think It Means?

Transformative works are the heart27 and soul28 of the fair use doctrine. The taking of the copyrighted work and transforming it into “new information, new aesthetics, new insights and understandings . . . is the very type of activity that the fair use doctrine intended to protect for the enrichment of society.” 29 Yet, transformative works seem to be included in the definition of “derivative works”:

work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

30 And as a derivative work, wouldn’t copyright owners hold an exclusive right?31

Courts have dealt with this seemingly contradictory statutory language by holding that a copyright owner’s exclusive right to derivative works extends to transformations in form, which “merely supersede the objects of the origin,” such as “converting a novel into a play,” but this right does not extend to transformations in expression.32 These latter transformations add something new to the public body and therefore, “progress science and the useful arts.”

Unfortunately, setting a standard for when such a transformation has occurred is far from an easy task and has led to confusion and inconsistency amongst the courts, so much so that some have even likened it to Justice Stewart’s famous “I know it when I see it” standard for obscenity.33 Given this, it is not surprising that many risk averse users of copyrighted works choose to obtain permission upfront. Nevertheless, this section will provide some examples that could provide some context for decision making.

B. I Know You Are, But What Am I? Examples of Transformative and Non-Transformative Uses

As discussed above, central to the transformative use inquiry is whether the new use “adds something new, with a further purpose or different character,” and imbues the copyrighted work with a new expression, meaning or message.34 The following are examples of copyrighted works that were held to have been successfully transformed and rolled out by the unauthorized user.

Category Copyrighted Work Unauthorized Work Taking / Description Transformation Rationale
Parody Oh, Pretty Woman by Roy Orbison Pretty Woman by 2 Live Crew Copied lyrics, bass riff repetition; but evolve into descriptions of taunts, demands for sex, and a sigh of relief from paternal responsibility. Comments/criticizes “naivete of the original” and rejects the “sentiment that ignores the ugliness of street life and the debasement that it signifies”35
Parody Mattel’s Barbie doll Food Chain Barbie photo series by Thomas Forsythe Nude Barbie in compromising situations, including one wherein Barbie faces destruction by large kitchen appliances, yet continues to display her well-known smile Criticism of Barbie’s “influence on gender roles and the position of women in society”36
Parody August 1991 Vanity Fair magazine cover depicting a nude, pregnant, Demi Moore with a serious expression, covering herself in the vein of Botticelli’s Birth of Venus Movie teaser poster for Naked Gun 33 ⅓, a slapstick comedy, that superimposed Leslie Nielsen’s face onto the body of a similarly posed pregnant woman with the caption “Due this March” The composition of the photo, including the model’s posture, shape, props (large ring), and lighting Comments on the pretentiousness of posing a well-known actress in a manner reminiscent of a well-known painting; and
Comments on / disagrees with the “extolation” of beauty suggested beauty by photographer.37
Parody Gone with the Wind by Margaret Mitchell The Wind Done Gone by Alice Randall; a novel calling forth same characters, setting and plot but told from the perspective of a former slave The appropriation of characters, plot, and setting Comments/criticizes the portrayal of race roles depicted in the copyrighted work and “strips the romanticism from Mitchell’s specific account of this period of our history.” Randall’s work “reflects transformative value because it ‘can provide social benefit, by shedding light on an earlier work, and in the process, creating a new one.’”38
New Information Books Google Search that allows internet users to search for books and read book excerpts to determine whether a book contains searched term and also see "snippets" of text containing the searched-for terms. Google’s digitization of “tens of millions of books” and publication of a publicly available search function. Copying allows a user to identify those books that contain a word or term of interest, as well as those that do not”; and allows readers to learn the frequency of usage of selected words in the aggregate corpus of published books. “No doubt that the purpose of this copying is the sort of transformative purpose described in Campbell.”39
Education Las Vegas Review-Journal article about police targeting minorities Article reposted on nonprofit, Center for Intercultural Organization website Article was uploaded in its entirety Noncommercial use to educate the public is transformative40
Time “Anchor” The entire run of The Ed Sullivan Show, including performance by the Four Seasons Jersey Boys a musical, dramatization about the bank, the Four Seasons 7 second clip of a Four Seasons performance on The Ed Sullivan Show Use of clip serves as a “biographical anchor” to denote a historical point in the band’s history41

If a new work merely supplants the copyrighted work or uses it “to get attention or to avoid the drudgery in working up something fresh,”42 no transformative use will be found. Below are cases where no transformative use occurred or, at least not consistently, and, upon weighing this with the other three factors, no fair use was found.

Category Copyrighted Work Unauthorized Work Taking / Description Infringement Rationale
Satire The Cat in the Hat by Dr. Seuss The Cat Not in the Hat! A Parody by Dr. Juice by Alan Katz and illustrated by Chris Winn Work was a story about the O.J. Simpson case written in the rhythmic and creative styling of Dr. Seuss and mimicked illustrations There was no attempt made to comment on The Cat in the Hat. Suggesting author’s imagination “was too limited to conceive the possibility of a real trickster cat who creates mayhem along with his friends Thing 1 and Thing 2, and then magically cleans it up at the end, leaving a moral dilemma in his wake” is inadequate and such a statement could be made by a satiric work about any prior author43
Borrowed Elements Men in Black (MIB) promotional poster, showing Will Smith and Tommy Lee Jones wearing black suits, white shirts, black ties, and sunglasses in front of nighttime New York City skyline, carrying over-sized guns with serious facial expressions and caption:"PROTEC-TING THE EARTH FROM THE SCUM OF THE UNIVERSE." The Big One (TBO) promotional movie poster, showing Michael Moore wearing black suit, white shirt, black tie, sunglasses and black baseball cap in front of nighttime New York City skyline, carrying over-sized microphone with facial smirk and caption: "PROTECTING THE EARTH FROM THE SCUM OF CORPORATE AMERICA.” The composition of the photo, including model’s clothing, backdrop, similarly sized props and similar caption TBO ad borrows elements from MIB and cannot reasonably be perceived as commenting on or criticizing MIB ads
Like MIB ad, TBO purpose is to entice viewers to see the movie and appropriate MIB elements to “avoid the drudgery in working up something fresh."44
Derivative Work The Catcher in the Rye by J.D. Salinger 60 Years Later: Coming Through the Rye by Fredrik Colting Characters, setting, history, albeit later in life (noting that even if Salinger never published a sequel, the right of derivative works--including their nonpublication, lies with the copyright holder) While the inclusion of Salinger was a commentary on his reclusive nature, the work made no attempt to not comment or criticize the original work or characters. 60 Years intentionally and purposefully borrows from original, both substantively and stylistically 45
Excessive Taking in a Derivative Work Harry Potter series and universe created by J.K. Rowling The Lexicon a fan created work that describes and reproduces characters, plots, settings, locations, etc. set in Rowling’s world Characters, setting, descriptions, etc.**
**found to be transformative, but not consistently transformative
Lexicon created for reference purposes, rather than the entertainment or aesthetic purposes of the original works, therefore Lexicon's use is transformative and does not supplant the objects of the Harry Potter works. HOWEVER, it is “not consistently transformative”. Lexicon excessively copied verbatim from the original, which diminishes a finding of a transformative use. Moreover, Lexicon’s purpose as reference material lapsed when no citations or references accompanied copied text46
No Originality Photograph, taken by Thomas E. Franklin, of firemen raising the American flag at the ruins of the World Trade Center site on September 11, 2001 Uploaded/posted photograph onto Fox show, Judge Jeanine, Facebook page in combination with World War II photograph of Marines raising the flag on Iwo Jima with the comment “#neverforget” Photograph in its entirety albeit cropped, lower resolution, juxtaposed to WW2 photo with a #neverforget caption Casual viewer would perceive no alterations as flag raising is predominant feature.
Additionally, neither the combined photo nor the caption originated with Fox. “Thus Fox News' commentary, if such it was, merely amounted to exclaiming “Me too,” which is woefully insufficient for transformative use.47
Excessive Taking - Time “Anchor” Various media and other materials related to Elvis Presley 16 hour video documentary on the life of Elvis Presley Several videos (roughly making up 5-10% of 16 hour video) occasionally with added commentary**
**found to be transformative but not consistently transformative
Use of many of the clips is transformative as they serve “as historical reference points in the life of a remarkable entertainer.” HOWEVER, it is not consistently transformative as the documentary makes excessive use of clips, often without commentary and are seemingly rebroadcasted for entertainment purposes only. 48

As one can see from comparing the two tables above, similar uses for purportedly similar purposes can lead to two different outcomes. What then of potentially, massively infringing works such as Ready Player One, which incorporate hundreds of copyrighted works? Is there an argument to be made for fair use?49

C. What is the Primary Goal?

Ready Player One is set in the year 2044, in a world dealing with a litany of catastrophes (energy crises, catastrophic climate change, widespread famine, poverty, diseases, war, etc.). The main character, a teenager named Wade Watts, lives with his aunt in “the stacks”, a low income community consisting of people-crammed trailers stacked one upon the other, where gunfire is not uncommon. Like the rest of the population, Wade spends most of his life in “the Oasis”, a “globally networked virtual reality” where people work, learn, have fun, etc. Ever since the billionaire creator of the Oasis, James Halliday, announced, at the time of his death, that whosoever found his “easter egg” that he had hidden somewhere in the Oasis would inherit his entire fortune, Wade, along with other egg hunters (“gunters” as they are referred to), including the token “evil corporation,” have devoted themselves to studying the 80s in order to solve Halliday’s series of puzzles based on 80s movies, tv, video games, and Halliday’s own life. Once Wade “stumbles upon the first clue”, “the race is on, and if Wade’s going to survive, he’ll have to win--and confront the real world he’s always been so desperate to escape.”50

Anyone who has read or seen an interview with the author, Ernest Cline, is familiar with his fondness for the 80s. From his car (a modified Delorean in the vein of Back to the Future with the license plate “Echo 88” which recalls Ghostbusters) to his depth of “useless movie and video game trivia”, Cline has been described as “the ultimate fanboy.”51 It is no surprise then that Ready Player One is filled with 80s pop culture references, starting with its title--itself a prompt used in video games to inform the player that the game is starting. Yet, Cline’s book is more than a work of fan fiction.52 Part social commentary, part autobiography, all nostalgia--Cline’s use of 80s references could arguably be considered transformative. For example, Wade’s world is one in which the world is beset by daily tragedy and the only means of escape is through digital anonymization and isolation. In the technologically advanced world of 2044, Cline’s use of simple 80s references as “keys” to winning a fortune serves as a commentary on the arrogance of our own world--that, despite our technological advancements, fortune (and friends) might be found in the simpler things of life.53 Still, there are plenty of other works that make similar statements without having to use copyrighted works, so this rationale probably falls short of transformative.

Yet, Ready Player One would not be the same book without the specific works Cline chose. Indeed, the only way the book succeeds, in the manner it does, is to go to the “heart” of the copyrighted works, or that “which readily conjures up” the work.54 Once conjured, Cline proceeds to add new expression and meaning to them throughout the novel. As a whole, the transformative use is twofold. First, for certain segments of the population, the chosen works elicit a feeling of longing or wistfulness--not for the resurrected 80s works themselves, but--for the time in their lives in which those specific works existed, i.e. nostalgia. Several publications note how Ready Player One is a “nostalgic thrill ride”, “crammed with ‘80s nostalgia”, which “triggers memories and emotions embedded in the psyche of a generation.”55 Second, they serve as Cline’s autobiographical anchors. Like his character Wade Watts, Cline was raised by relatives in a trailer park56 and spent his teenage years escaping into video games, movies and tv shows of the 80s. Many chosen works that play seminal roles in the novel had meaning in Cline’s own life. For example, “Adventure” was the first virtual reality game Cline ever played, and it led to some “profound moments” for him.57 In the book, “Adventure” is used to kickoff Halliday’s contest at the beginning. Through Halliday and his contest, Cline is reaching out to engage his readers by sharing his experiences growing up in the 80s (and perhaps trading “intel” with other 80s kids). For those who missed out on the 80s or who had different experiences, Cline’s purpose is probably best expressed by Ogden Morrow: “Jim[/Cline] always wanted everyone to share his obsessions, to love the same things he loved. I think this contest[/book] is his way of giving the entire world an incentive to do just that.”58 Given Cline chose specific works from the 80s in his 2011 book set in a 2044 world not for the benefit of the specific expressions contained therein but for the era and events which they represented to him and others, Ready Player One arguably uses the works for a transformative purpose.

That said, the fair use analysis does not change. For each incorporated copyrighted work, all four fair use factors must be considered and weighed. Nevertheless, if the inclusion of the copyrighted work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message,” then the inclusion has a transformative purpose and the other three factors, including the commercial nature of the unauthorized work, will have less significance.59

DOES THAT ANSWER YOUR QUESTION?

As noted above, predicting whether a given use will be “fair use” or its purpose transformative, is difficult given the varying applications and tests courts have applied. While there are some purposes which tend to be found transformative more consistently, such as parody, news reporting and nonprofit education, and are more likely (but not assuredly) to be a fair use, many other uses and alleged purposes have varying degrees of success. Unfortunately, given the difficulty of setting a strict, objective standard for such use-by-use determinations and the greater likelihood of facing a “I’ll know it when I see it” subjective standard, risk mitigation (i.e., the lawyers) likely calls for permission / a license from the copyright owners.


. . . AND KNOWING IS HALF THE BATTLE

  1. Tom Jorgensen, Ready Player One: 138 Easter Eggs and Pop Culture References in the Movie, IGN, Mar. 31, 2018, http://www.ign.com/articles/2018/03/31/ready-player-one-every-easter-egg-and-reference-we-could-find-in-the-movie.
  2. The pretext of the 1787 Convention was to fix the shortcomings of the government under the Articles of Confederation. Instead, an entirely new system of government was debated and eventually established. Richard R. Beeman, The Constitutional Convention of 1787: A Revolution in Government, The National Constitution Center, https://constitutioncenter.org/interactive-constitution/white-pages/the-constitutional-convention-of-1787-a-revolution-in-government (last visited May 2, 2018).
  3. U.S. Const. art. I, § 8, cl. 8.
  4. 35 U.S.C. §§ 100-05.
  5. 17 U.S.C. §§ 101-22.
  6. “Copyright protection subsists, in accordance with this [Title XVII], in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C § 102.
  7. Burrow-Giles Lithographic Co. v. Sarony,111 U.S. 53, 58 (1884).
  8. Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340, 345(1991).
  9. Id.
  10. Id. at 362-63 (noting that selection and arrangement of facts cannot be mechanical or routine and that no creative selections were made by the producer of the white pages).
  11. 17 U.S.C § 101.
  12. Some examples include: grade school book reports, short stories, family albums, needlepoints, software code, smartphone photos, audio recordings, and even doodles on a napkin.
  13. 17 U.S.C § 106.
  14. 17 U.S.C §§ 411-12. In addition to being permitted to bring a suit of copyright infringement into federal court, registration has several other benefits including the availability of statutory damages and attorneys’ fees; assumed validity of your copyright; the creation of a public record; and in some cases, satisfaction of deposit requirements.
  15. This sentiment was more famously phrased by Isaac Newton as: “If I have seen further it is by standing on the shoulders of Giants." Isaac Newton. Letter from Sir Isaac Newton to Robert Hooke. Historical Society of Pennsylvania.
  16. Emerson v. Davies, 8 F. Cas. 615, 619 (CCD Mass. 1845) (emphasis added).
  17. Indeed, “the fair use doctrine . . . requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is to foster.” Campbell v. Acuff-Rose Muse, Inc., 510 U.S. 569, 577 (1994).
  18. 17 U.S.C § 107. Additionally, the statute provides several examples of when fair use is likely. They include “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
  19. Campbell, 510 U.S. at 578.
  20. Id. at 579.
  21. Id.
  22. As discussed above, low levels of creativity will not preclude copyright protection, but a subsequent use of the work may more likely be considered fair use.
  23. Sony Corp. v. Universal City Studios, 464 U.S. 417, 497 (1984).
  24. Judge Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1995).
  25. Campbell, 510 U.S. at 588.
  26. Harper & Row v. Nation Enterprises, 471 U.S. 539, 566 (1985).
  27. Campbell, 510 U.S. at 579 (“Such works thus lie at the heart of the fair use doctrine”).
  28. J. Leval, supra note 23, at 1116.
  29. Id. at 1111.
  30. 17 U.S.C § 101.
  31. 17 U.S.C § 106.
  32. Craig Joyce et al., Copyright Law 866 n.4 (10th ed. 2016).
  33. David E. Shipley, A Transformative Use Taxonomy: Making Sense of the Transformative Use Standard, 63 Wayne L. Rev. 266, 281 (2017) (internal 2d. Cir. citations omitted).
  34. Campbell, 510 U.S. at 578.
  35. Id. at 583.
  36. Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003).
  37. Leibovitz v. Paramount Pictures, 137 F.3d 109 (2d Cir. 1998)
  38. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1270-71 (11th Cir. 2001).
  39. Authors Guild, Inc. v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)
  40. Righthaven LL v. Jama, No 2:2010-cv-01322, (D. Nev. Apr. 22, 2011).
  41. SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273 (9th Cir. 2013).
  42. Campbell, 510 U.S. at 580.
  43. Dr. Seuss Enters., L.P. v. Penguin Books U.S.A., Inc., 924 F. Supp. 1559 (S.D. Cal. 1996), aff’d, 109 F.3d 1994 (9th Cir. 1997).
  44. Columbia Pictures Indus. V. Miramax Films Corp., 11 F. Supp. 2d 1179 (C.D. Cal. 1998).
  45. Salinger v. Colting, 607 F.3d 68 (2d. Cir 2010).
  46. Warner Bros. Ent. Inc. v. RDR Books, 575 F.Supp.2d 513 (SDNY 2008).
  47. North Jersey Media Grp. Inc. v. Jeanine Pirro and Fox News Network, LLC, 74 F.Supp.3d 605 (S.D.N.Y. 2015).
  48. Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003), overruled on other grounds by eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006).
  49. Even the quoted text from the book blurb is quintessentially 80s.
  50. Regardless of whether the film adaption makes fair use or not, the movie producers (and their legal team) did secure licenses for some but not all of the book references as well as other copyrighted works that were not part of the original book. Josh Rottenberg, How the Team Behind “Ready Player One” Wrangled a Bonanza of Pop Cultures References into a Single Film, Los Angeles Times, Apr. 1, 2018.
  51. John Goodwin, How “Ready Player One” Author Ernie Cline Finally Won, CBS NEWS, Apr. 1, 2018.
  52. Stories written by, and for, fans that make use of established characters, worlds or settings (usually without the permission of the author or publisher) in consistent and inconsistent ways.
  53. A hokey lesson to be certain, but hokey lessons were the bread and butter of 80s cartoons.
  54. Campbell, 510 U.S. at 588.
  55. Praise from the Huffington Post, the Village Voice, and Entertainment Weekly, respectively. Praise Section of Novel. Citations omitted.
  56. Goodwin, supra note 51.
  57. Id.
  58. Ernest Cline, Ready Player One 122 (Broadway Books 2011). Readers should note that while both the book and the movie contain hundreds of pop culture references, the purpose of their inclusion, as defined in this article, is more readily inferred in the book than the movie.
  59. Campbell, 510 U.S. at 579. The author notes, however, that concerns of trademark infringement and dilution may still be justiciable. These issues are outside the scope of this discussion.