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On Friday, October 23, the Vanderbilt Journal of Entertainment and Technology Law held its annual symposium. This year’s symposium was entitled Drawing Lines in the Digital Age: Copyright, Fair Use, and Derivative Works. The symposium covered a variety of topics related to digital copyright, but the focus was on exploring the intersection of fair and derivative uses of copyrighted works. This issue was tackled head on by our first panel, and described briefly below.
Section 106(2) of the Copyright Act grants copyright owners the right “to prepare derivative works based upon the copyrighted work.” The act defines a derivative work (in section 101) as “a work based on one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.” The typical derivative work is the motion picture version of a book. But in the digital age, user-generated content like mashups are creating whole new kinds of derivation, and pushing the boundaries of copyright as a result.
Notwithstanding the rights granted in section 106, section 107 of the Copyright Act deems “the fair use of a copyrighted work . . . not an infringement of copyright.” In interpreting the fair use standard, the Supreme Court in Campbell v. Acuff-Rose Music, Inc. established the now well known and very popular transformative use test. The Court noted that “transformative works . . . lie at the heart of the fair use doctrine,” and many transformative uses have been held fair as a result. Much of the user-generated content online justifies itself as fair use on these grounds.
The confrontation between fair use and derivative rights in the digital age is therefore clear. On the one hand, Campbell has made most “transformative” uses fair use. On the other hand, the Copyright Act grants the author the exclusive right to “transformed” derivative uses. And online, entire genres of user-generated content are based around the concept of transformation. How ought copyright law treat these works? Can a meaningful distinction between the transformative and the transformed be drawn? Our attendees’ answers to these questions will be available soon–both in the published symposium issue (early next year) and online video clips of our panels (much sooner).
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