The Song Remains the Same: Transformative Purpose Analysis in Fair Use Law

Abstract

Fair use doctrine in copyright law is widely known as a difficult and unpredictable area of legal doctrine. Recently, the “transformative use” doctrine has emerged as a dominant approach to fair use determinations. Some courts are even viewing as transformative appropriations that do not alter the original work in any way, but that simply use it in a different functional context from its original creator. This article examines and critiques this novel “transformative purpose” approach to fair use and suggests that the approach may create even more indeterminacy in an already confused fair use landscape.