Free for a Fee

In Acuff v. Rose, 510 U.S. 569, 114 S. Ct. 1164 (1994), the Supreme Court set out the rule that transformative use (copying) of a small part of a work could be fair use even if done for commercial purposes (the case involved a parody). Since then, the idea of transformative fair use has been the most important issue in contested fair use cases. It is clear that the Court was referring to copying of part of a work and using it to create a new work of expression. This is different in concept and kind from the decisions that morph the concept into one that protects comprehensive copying so long as the copies are used for a different purpose than the author’s original purpose for the work. Properly understood, this comprehensive copying is simply “infringement”.

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