Transformative: Copy Under Guise

   "I helped him to find his own words by starting with some of mine," says William Forrester (played by venerable actor, Sean Connery) to Professor Crawford in defense of his protégé, Jamal Wallace, in the movie Finding Forrester. This line serves as conclusion to the plot thread regarding Wallace's plagiarism ("copyright infringement") of one of Forrester's prior works, "A Season of Faith's Perfection," for a writing contest. In context of the film, Wallace used the title and first paragraph of Forrester's essay, but developed it from there into a work completely his own (all of this admitted to by Professor Crawford). Wallace was disqualified from a writing contest for his academic dishonesty. The conflict as can be seen here, but this is Hollywood, and we are here to talk about real life.ＭＳ明朝ＭＳ明朝    I have readily admitted in prior blog posts that I have been inspired in my own writing by the creative works of others (I mean this blog post is inspired by a movie and its title by a "veiled as a Saturday morning cartoon" advertisement for toys). In fact, it is a common occurrence in today's digital era that users take content made by other artists, cut it up, revise it, expand upon it, diminish it, and mash it back together to make something "original." The issue with this is, unlike Jamal Wallace, is that these users do not actually have the permission of the works' authors/copyright owners. This is potentially a bad thing for the user and the author. Title 17, Chapter 1, Section 106 of the United States Code states in essence that the copyright owner has exclusive rights to copy, perform, display, transmit, transfer, publish, distribute, and make derivatives of their copyrighted work. User Generated Content (UGC) utilizing copyrighted material, whether fan fiction or a YouTube mix, on a verbatim level violates the rights afforded a copyright owner. The question then comes in on where the line for fair use of this copyrighted content comes into play. In fact, this very topic was the issue at large at Vanderbilt University Law School Journal of Entertainment 2009 Symposium Panel (that was a mouthful; find it on iTunes U to check it out).    Just one section later in the U.S. Code, fair use is detailed and determined by four factors: for what purpose was their infringement, the nature of the copyrighted work, how much was used, and how it affects the author. Let's take into account a song that is used for profitable reasons, is a well protected copyrighted work, and that the commercial version was used. In the same vein that listening to this song on the radio can inspire you to buy it, listening to this song on YouTube can do the same. However, the radio pays licensing fees where as the common YouTube user doesn't personally do so (but for argument's sake let's ignore that YouTube now pays the royalties on music). Does this harm the author by diminishing their right to profit of the use of their work? Depends on the extent, but in theory, yes it does. The trickiness can be compounded if someone puts this particular YouTube video on their website. Now they are infringing on the original author as well despite having found the video in a public forum, generated by a different user (queue P2P and Napster references). Even libraries archiving UGC can fall victim to this kind of copyright infringement.    Going back to Wallace, he used a protected work to make a profit (win a contest), infringed on a creative, well protected work, and used the title and the first paragraph, word for word, of Forrester's work. The final and whole work though was a new piece of art completely deviating from the original. At this point, is the new work "transformative" enough or has its purpose been altered enough (sort of like Wind Done Gone vs. Gone With the Wind) to be deemed a fair use of copyrighted property? This concept is birthed from the fair use of copyrighted works to comment on or criticize the work in question and the First Amendment right of to freedom of expression. These new versions of copyrighted work can arguably have significant social benefit (I make no comment of any political affiliations, this is just an example referenced on the panel) such as the use of Mannie Garcia's photo to make the Obama "Hope" poster (this is not to say there isn't a fight over it as Garcia's photo was used without her permission), but as noted in the Vanderbilt panel, it is not always a satisfactory standard to work by. According to Professor Thomas Cotter, courts should focus on a concept he refers to a cognizable harm in determining fair use cases. If the author is not feasibly damaged by the derivative work, it should be fair use. The short fall of this, as he mentions, are if moral rights are considered.      As an author, I am appreciative of this protection as it means I can capitalize on and own my created works and do with and expand upon them as I please. However, as a creative writer I find it somewhat of an impediment too. For example, what if I wanted to tell the story of a side character from a copyrighted work such as Harry Potter ("The Misadventures of Seamus Finnigan" anyone?)? Well, although she has given no indication that she will write such a book, it is not unheard of authors doing such a thing (Stephanie Meyer's Midnight Sun to Twilight or Orson Scott Card's Ender's Shadow to Ender's Game) and she would assuredly pursue and condemn my fan fiction as she vehemently protects her universe from both financial and moral perspectives.