Updated: May 16, 2021
By Ms. Tanya Mehta and Ms. Anamika Jha
We often come across movies and songs having a character humming a song from an album that is not a part of the film or an extract read from a novel. In reality shows, we can see the use of parody more than often. Several questions may pop up in our creative heads like, isn’t such use amounts to copyright infringement? Can I use such a scene in my script or film? Would the original owner/author of the work take copyright objection? The answer to these questions is also not very straightforward. To answer these questions, we need to navigate the world of Fair Use with more focus on Transformative Use.
Our Copyright Act, 1957 has provisions to protect such works created by you that are more or less inspired by others but used in a transformed manner. All you have to ensure is your work should come under the domain of such protection. In this article, we are going to understand transformative use as a defense of copyright infringement.
Section 52 of the Indian Copyright Act, 1957 extensively deals with fair dealings. It lists several usages that do not amount to copyright infringement. Similarly, Section 107 of the US Copyright Act, 1976 deals with the determination of fair dealings. We need to consider four (4) main factors required for Fair Use;
a) the purpose and character of the use, including whether it is commercial or for
b) the nature of the copyrighted work
c) the amount of the portion used to concern the copyrighted work as a whole. The effect of the use upon the potential market for or value of the copyrighted work.
d) Effect on the Market
In the case of SOFA Entertainment, Inc. v. Dodger Productions, Inc, the court applied this doctrine. In this matter, SOFA filed a case against Dodger for copyright infringement by using a seven-second clip of Ed Sullivan's introduction of the Four Seasons on "The Ed Sullivan Show". The clip was used in Dodger's musical about the Four Seasons, "Jersey Boys," to mark a historical point in the band's career. The court held that the clip was used for showing a historical moment for biographical significance in the TV Show. The Court also held that Dodger was entitled to prevail on its fair use defense as a matter of law. This case does not touch the aspect of transformative works. However, we can see a clear hint towards transformative use in this case.
The Doctrine of transformative use is part of the Doctrine of Fair Use. It protects a person when he/she has used the material protected under the copyright law. To receive protection, a person should use the protected work to create a new material. This derived material is known as transformative work. For example, in a particular matter, a Court held that the use of three scenes from a pornographic film in a biographical film was considered transformative because the biographical film was not pornographic and was not aimed toward the same audience as the pornographic film.
It generally refers to work derived from changing aspects of the original work and creating new work. These transformative works are also eligible to be registered under the Copyright Act, 1957. In these times where technology has taken over everything, and anybody can become an internet sensation overnight, memes are the most trending things on the internet helping us keep a light atmosphere in these unprecedented times. Usually, these memes are derived from an original picture, video, or text and then altered in several different ways. Hence, these memes the perfect example of transformative works.
Now you might wonder, everybody will use a well-known material created by a famous creator, add some extra elements (“masala”) to it, give the original creator credits, and voila create something new which is not exactly “new”! However, this is not how it works, transformative works and fair dealings are determined on a case-to-case basis. In the case of Chancellor Masters & Scholars of the University of Oxford vs Narendra Publishing House, 2008, the Court has elaborated the parameter to identify ‘Transformative work’ in the following manner;
"…the Courts should ask whether the purpose served by the subsequent (or infringing) work is substantially different (or is the same) from the purpose served by the prior work. The subsequent work must be different in character; it must not be a mere substitute, in that, it not sufficient that only superficial changes are made, the basic character remaining the same, to be called transformative…If the work is transformative, then it might not matter that the copying in whole or substantial. Again, if it is transformative, it may not act as a market substitute and consequently, will not affect the market share of the prior work”.
In the case of Cambell v. Acuff-Rose Music, the band used the musical tag and the words from the song “Pretty Woman” and the rest of the music and the song were different. The Supreme Court of United States ruled its decision in favor of the band, stating that the use of the musical tag and the words came under the scope of fair dealings. In this case, the court explored transformative works under fair dealings. It held that the song was transformative as it was altering the original creation by giving it a new expression and meaning. Courts consider the question, whether the material taken from the original work helps in altering and giving a new meaning to the transformative work. Thus, courts often determine the cases of fair dealings and transformative by analyzing them thoroughly and determining according to the facts of the particular case.
To conclude, there is no straight-jacket formula to determine transformative use. This article has given you a brief idea. We opine one must be aware of the kind of work s/he adapts in order to make transformative materials of his/her own. One needs to understand that transformative use is a defense against copyright infringement. Hence, to identify whether the use is transformative or not, you should get a legal review of your content done by a media and entertainment lawyer. A specialist lawyer shall review your content (film/script/music album/any creative work) based on the legal parameter and give you a detailed report on whether your use of copyrighted material amounts to transformative use/fair use or you need mandatory permission. Accordingly, you shall be able to avoid copyright infringement claims. If you have any queries, please reach us at firstname.lastname@example.org.
Meet Co-author Tanya Mehta: https://www.linkedin.com/in/tanya13/