Article: Marching Bravely Into the Quagmire: The Complete Mess that the “Transformative” Test Has Made of Fair Use

In 2014, Stephen Carlisle, J.D. published "Marching Bravely Into the Quagmire: The Complete Mess that the 'Transformative' Test Has Made of Fair Use."Carlisle is the copyright officer at Nova Southeastern University in Florida.  In the article, Carlisle provides examples of the problem with determining if a use is transformative.  He says:

The problem the Supreme Court created is that the creation of a derivative work is supposed to be an exclusive right of the copyright owner, and requires permission or a license. Indeed the word “transformed” is right there in the definition of what a derivative work is. Yet now, with this language from the Supreme Court, a work that is “transformed” is fair use and is therefore not an infringement of copyright.

 I'm glad to have found this article.  Transformative use is always an intense topic in my spring copyright class, and now I have this article to add as a reading. Does it make the topic more clear? No, but I think it will help the discussion.

Stephen Carlisle publishes regularly on the NSU Copyright Office web site.  You may want to go and see if another article is of interest to you.