Copyright Maybe its just a coincidence of timing, but courts and copyright authorities suddenly seem very solicitous toward “transformative” uses of copyrighted works by creators other than the original rights owner.
Last week, as part of its triennial rulemaking process, the U.S. Copyright Office granted a first-time exemption from the DMCA’s anti-circumvention provisions for hacking CSS on DVDs, under certain circumstances, for the purpose of “the incorporation of short portions of motion pictures into new works.” Among the circumstances where it’s now permissible is in the creation of “noncommercial videos.” In its discussion of the ruling, the Copyright Office made it clear that it was referring to the use of snippets of a film in the sort of transformative mash-ups popular on YouTube and elsewhere on the web.
Previously, the Office had used the exemption process largely to address limited practical or pedagogical cases, such as accessing content encrypted in obsolete formats or for face-to-face teaching.
The ruling was the second major victory for transformative uses of copyright works in the last four months. In April, the Second Circuit Court of Appeals, a highly influential tribunal in copyright circles, overturned a lower court injunction against publication in the U.S. of British author Frederick Colting’s 60 Years Later: Coming Through the Rye. The book is based on J.D. Salinger’s 1951 classic The Catcher in the Rye and features both a fictionalized version of Salinger as well as original book’s main character, Holden Caulfield. Although the jacket copy of the U.K. edition described 60 Years Later as a “sequel” to Catcher, Colting denied any such intention. Instead, he argued, his goal was to examine what happens when an artists creates a persona with such enduring cultural power.
In overturning the injunction, the Second Circuit ruled the fact that a derivative or adaptive work may not be not an overt parody (the traditional bright-line rule for transformative use) does not automatically disqualify it as a fair use of the original.
The MPAA had filed a amicus in the case in support of Salinger, arguing that such a broad definition of “transformative” use could jeopardize Hollywood’s ability to create multi-film “franchises” (i.e. sequels) around a recurring character.