Toward a Fair Use Standard Turns 25: How Salinger and Scientology Affected Transformative Use Today
Benjamin Moskowitz
NOTE

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INTRODUCTION

[T]

he fair use doctrine is one of the most divisive issues in copyright law today. As Professor Neil Weinstock Netanel wrote, “[n]umerous commentators have lambasted the fair use doctrine as hopelessly unpredictable and indeterminate.”^[1] While a few countries, including the United States, have added a fair use doctrine to their legal codes, many others have criticized the defense for beingfickle, and for potentially leading to much uncertainty.^[2] In 1994 the Supreme Court decided Campbell v. Acuff-Rose Music, Inc., which became a seminal case in the fair use doctrine’s evolution.^[3] With Campbell, the growth of the transformative nature of a work as a deciding factor in a fair use analysis began in force. Pushed forward with Justice Souter’s opinion, the idea of transformativeness has only continued to grow. In 2013, amid numerous cases decided using the fair use analysis, two stood out from the rest: Cariou v. Prince^[4] and Seltzer v. Green Day, Inc.^[5] Additionally, in 2014 the Seventh Circuit added another important ruling to the canon of fair use analysis with Kienitz v. Sconnie Nation LLC.^[6] The rulings of these cases, which depended heavily on the idea of transformativeness, expanded the law’s previous boundaries regarding what could be considered transformative.

This Note will explore the contours of the fair use doctrine, its expansion, and the increased use of transformative use as a fair use defense. Part I introduces a brief history of copyright protection and the development of fair use. Part II focuses on Judge Pierre Leval’s 1990 Harvard Law Review article Toward a Fair Use Standard.^[7] This article was in part written as a reaction to the Second Circuit’s disagreements with two copyright cases over which Leval presided while acting as a district court judge in the Southern District of New York. Part III discusses the immediate impact of Judge Leval’s article on the Supreme Court’s opinion in Campbell. Part IV follows the recent growth of transformative use in cases such as Cariou, Seltzer, Sconnie, and looks at certain issues with Leval’s interpretation. Over the years fair use has changed dramatically. Judge Leval’s article played a significant role in that change, advancing the doctrine and the effect of “transformativeness” to a point where even Judge Leval may not have approved.

* Associate Editor, Fordham Intellectual Property, Media, & Entertainment Law Journal, Volume XXV; J.D. Candidate, Fordham University School of Law, 2015; B.A., Tufts University, 2009. I would like to thank Professor Hugh C. Hansen for his help in examining this Note’s topic. Additionally, a big thank you to my friends and family for their support, advice, and encouragement over the law school experience. Lastly, to the best editor ever—my mom—I couldn’t have finished this journey without you