Cut, Paste, Publish: The Role of the Transformative Use Doctrine in the Age of Digital Works (2011)

Undergraduate: Rachel Scall

Faculty Advisor: Cathy Packer
Department: Journalism & Mass Communication

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The transformative use doctrine is a defense against copyright infringement that falls under the fair use defense outlined in the Copyright Act of 1976. There is no bright-line test for transformativeness, leaving creators guessing whether their use of an original work to create a new work is fair or illegal. The transformative use doctrine has become even more unclear as it has been applied to digital technologies. This thesis analyzes how courts at all federal levels consider transformative use in cases where the doctrine applies to digital technologies. Because no one court has decided a significant number of digital-transformative-use cases, the transformative use doctrine’s application remains unclear in relation to digital technologies. Some courts, however, have taken the Supreme Court’s one digital-transformative-use decision and expanded upon it to strengthen and broaden the scope of the transformative use doctrine. The expansion of the application of transformative use – to apply to various factors of sections 107 and to a consideration and factor not listed in section 107 – has left creators unsure of what constitutes a transformative use and has left digital creators at a disadvantage.