Transformative use leading to fair use

The transformative use of an original work of authorship may be sufficient to find fair use by the user of an original work, if other elements are satisfied. Generally speaking, the owner of a copyrighted work has several exclusive rights. However, if a user of the copyrighted work can establish that the use is fair use, there is no infringement for that use.

Several high school students filed an action against an online service provider that compares essays and other written works of students against several databases to determine if the students’ works include any plagiarism. Each of the high school students submitted an essay for review by the online service provider, but, specifically instructed the provider not to maintain a copy of their paper in the provider’s database.

The court considered the four factors for fair use and focused on the transformative nature of the papers. The court looked at the transformative nature of the students’ works, and based on the transformative use, held that storage of the students’ works in its online database did not constitute infringement, but fair use.

Fair use is a difficult analysis to make, particularly from a prospective position. Based on this case, however, the more transformative of the use, the greater the likelihood that the use will be found to be fair use.