Can a Museum Use the Doctrine of “Transformative Works?” Part 1.

Summary:  If a museum has important materials that are, essentially, in the public domain, can they use the fair use doctrine of “transformative works” as a defense to protect further use of the material?  Good question.  In this first piece we will start with a discussion of the doctrine of “transformative works.”

You want to protect digital distribution of materials in your museum.  Can you use the doctrine of “transformative works” by, for example, digitizing the original material?

The Hypothetical

Suppose you are a museum with materials that either were not copyrighted in the first place (because they were created before the doctrine of copyright arose) or because they have fallen out of copyright–and are, arguably, in the public domain.  You digitize it and then someone copies that digitized work.

In this case, the use of the doctrine differs from its usual application.  Typically, transformative work is an affirmative defense against a claim of copyright infringement by the copyright holder of the original work against the creator (and/or copyright holder) of the new work derived from that original work.

In other words, there are two parties.  Here, however, you are the same party on both sides (in one sense) BUT you are using it against the third party who copied the digitized copy.

The Doctrine

The doctrine (or principle) of transformative work falls under the larger doctrine of “fair use.”  We will not go into that concept in detail (search for it in Wikipedia).  In essence, someone takes an original work and changes it.  Most of the cases have been about taking part of the original work (or all of it) and making it a part of another work.  (In our case, it is oonly a digitization of the original work).

One commentator reduced it to these principles:

1. The commercial or noncommercial nature of the user’s use of the copyrighted [i.e., the original] work.
2. Does the user’s use of the copyrighted work conform to the fair use purposes contemplated in Section 107?
3. The degree of transformation from the purpose or function of the copyrighted work compared to the purpose or function of the new work.

Affirmative Defense

Please keep in mind that this phrase, “Affirmative Defense,” means that it is raised by the defendant once he or she has been challenged for copyright infringement.  (A recent lawsuit has been launched the other way around:  A plaintiff is suing to claim that his re-working of a photo of Barack Obama is a transformative work.)  In any event, it reinforces the principle of copyright law in the US:  The various doctrines are applied on a case-by-case basis.

Next Blog:  Applying the Principles.

In the next post on this topic we will apply these principles to the hypothetical.