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58 Alb. L. Rev. 677 (1994-1995)
Transforming Fair Use: The Productive Use Factor in Fair Use Doctrine

handle is hein.journals/albany58 and id is 687 raw text is: TRANSFORMING FAIR USE: THE PRODUCTIVE
USE FACTOR IN FAIR USE DOCTRINE
Laura G. Lape*
I. INTRODUCTION
Question: Has the defendant infringed plaintiff's copyright? An-
swer: It depends whether the defendant's work satisfies the original-
ity requirement. Beginning students. of copyright law not
infrequently confuse two distinct issues: copyrightability and in-
fringement. They attempt to answer the question whether the de-
fendant copier has infringed by asking whether the defendant has
produced a protectible work. This error, or one akin to it, is made by
courts that consider the productive or transformative nature of the
defendant's use significant in the determination of fair use.' Re-
* Associate Professor, Syracuse University College of Law. Copyright 1995, Laura G. Lape.
I wish to thank my research assistants, Cindy Monaco and David Ardia, for their invaluable
assistance.
1 Unlike the question and answer in the text, this Article deals with the defense of fair use,
rather than with the initial determination of infringement.
The term productive use was first employed in a reported decision in the context of a fair
use determination in Universal City Studios, Inc. v. Sony Corp. of America, 659 F.2d 963, 970-
72 (9th Cir. 1981), rev'd, 464 U.S. 417 (1984). The term transformative use first appeared in
a reported decision in this context in Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp.
1522, 1530 (S.D.N.Y. 1991). The .term transformative has been used as a synonym for
productive. See infra note 159. In this Article, for the sake of brevity, the term productive
use will be used for both productive use and transformative use. The term productive
use has been used by courts and commentators primarily in its narrow sense, namely, to
connote a use which transforms the copied material in producing a new work. See, e.g.,
American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 11, 14 (S.D.N.Y. 1992) (stating
that productive use does not mean any copying for a socially useful purpose, but rather
copying that produce[s] something new and different from the original), aff'd, 37 F.3d 881
(2d Cir. 1994); Pierre N. Leval, Toward a Fair Use Standard, 103 HARv. L. REV. 1105, 1111
(1990) (using the term transformative to mean use of quoted matter as raw material,
transformed in the creation of new information, new aesthetics, new insights and
understandings). This Article uses the term productive use in this narrow sense unless
otherwise indicated. For a full discussion of the meaning of productive use, see infra notes
159-82 and accompanying text.
The productive use doctrine has attracted the attention of commentators. See, e.g., Jay
Dratler, Jr., Distilling the Witches' Brew of Fair Use in Copyright Law, 43 U. MiAMi L. REV.
233, 291-92 (1988) (arguing that productive purpose should be favored in fair use
determinations); William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARv. L.
REV. 1661, 1730 (1988) (stating that a judge should hesitate before declaring transformative
or productive uses ... unfair); Wendy J. Gordon, Fair Use as Market Failure: A Structural
and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600,
1653-54 (1982) (arguing that there should be no per se bar against awarding fair use to

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