How to Legally Reuse Copyrighted Works in the U.S.

Transformative Fair Use: What It Means and Why It Matters in U.S. Copyright Law.

Updated: 8/11/2025

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Introduction

When can you use someone else’s creative work without asking for permission — and still stay on the right side of copyright law? The answer often comes down to fair use, a legal doctrine codified in Section 107 of the U.S. Copyright Act.

Fair use is the legal “safety valve” that allows certain uses of copyrighted works for purposes like criticism, commentary, education, and research. But in modern courtrooms, one question has become especially important: Is the new work transformative?

The concept of transformative fair use has been at the center of some of the most significant copyright cases in recent decades, from music parodies to AI-generated content. Understanding it isn’t just for lawyers — it matters to artists, educators, tech companies, and anyone creating new works that build on existing material.

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What Does “Transformative” Mean in Fair Use?

In copyright law, a transformative use is one that adds new expression, meaning, or message to the original work, rather than simply copying it. The focus is on whether the new work merely replaces the original or does something fundamentally different with it.

Courts evaluate transformation under the first factor of the four-part fair use test: the purpose and character of the use. The more transformative the use, the more likely it is to be considered fair — even if the new work is commercial.

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Origins of the Transformative Use Test

The modern understanding of transformative fair use comes from the 1994 U.S. Supreme Court case Campbell v. Acuff-Rose Music, Inc. This case involved rap group 2 Live Crew’s parody of Roy Orbison’s song Oh, Pretty Woman.

Even though the group had borrowed the song’s opening line and bass riff without permission, the Court found their work to be fair use because it was a parody — commenting on and ridiculing the original song’s idealized depiction of women.

Justice David Souter’s opinion set the tone for decades of fair use analysis:

“The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

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Transformative Use vs. Derivative Use

It’s easy to confuse transformative use with derivative works, but they are legally distinct.

• A derivative work is based on an original (like a movie adaptation of a book) and requires permission from the copyright holder.

• A transformative work may also be based on the original but alters it so significantly in purpose, message, or character that it qualifies as fair use.

In short: all transformative works are derivative in the everyday sense, but not all derivative works are transformative under the law.

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The Four Fair Use Factors (and How Transformation Fits In)

Under 17 U.S.C. § 107, courts consider:

1. Purpose and character of the use – Transformation strengthens this factor.

2. Nature of the copyrighted work – Factual works are easier to reuse than highly creative works.

3. Amount and substantiality of the portion used – Using only what’s necessary for your purpose helps.

4. Effect on the market – If the use harms the market for the original, fair use is less likely.

Transformation can tip the scales, sometimes even outweighing factors like commercial intent.

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Examples of Transformative Use

Courts have found transformation in a wide variety of contexts:

• Authors Guild v. HathiTrust (2012) – Digitizing books for searchability and accessibility for the visually impaired was transformative.

• SOFA Entertainment v. Dodger Productions (2013) – Using a 7-second Ed Sullivan Show clip in Jersey Boys as a historical reference point was transformative.

• Cariou v. Prince (2013) – Many of artist Richard Prince’s altered photographs were deemed transformative because they presented new aesthetics and meaning.

• Google v. Oracle (2021) – Google’s use of Java API code in Android was transformative because it repurposed the code for a new platform.

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Non-Transformative Uses

Some uses fail the transformation test:

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Why Transformation Matters More Than Ever

With the rise of generative AI, transformation is becoming a hotly contested issue. AI companies argue that their outputs are transformative because the models “learn” patterns rather than copy directly. Rights holders argue that outputs often reproduce recognizable elements without sufficient change.

Recent lawsuits — including Disney & Universal v. Midjourney — will test whether large-scale data scraping and AI output generation meet the transformative threshold.

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FAQs

What is transformation in fair use?
Transformation means adding new expression, meaning, or purpose to the original work so that it serves a different function than the original.

What does transformative mean legally?
Legally, it refers to the extent a work alters the original in character and purpose. The more transformative, the stronger the fair use defense.

What is transformative use vs. derivative use?
A derivative work adapts the original (like a movie version of a novel) and usually requires permission. A transformative work significantly changes the original’s meaning or message and may qualify for fair use.

What is the fair use law in the U.S.?
Fair use is codified in Section 107 of the Copyright Act and allows limited, unlicensed use of copyrighted works for purposes like criticism, commentary, news reporting, teaching, and research.

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Conclusion: Proceed, But Carefully

Transformative fair use is powerful, but it’s not a guaranteed shield. Courts weigh multiple factors, and transformation is just one — albeit an influential one. Before reusing someone else’s work, ask:

• Am I adding new meaning, purpose, or message?

• Could my use substitute for the original in the market?

• Am I taking only what’s necessary?

For complex cases, especially in commercial contexts, consult an intellectual property attorney before proceeding.