17 U.S.C. § 107 states that “the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as … teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” (Emphasis added). However, “an educational use that is rendered for profit may be regarded as the equivalent of a commercial use.” 4 Nimmer on Copyright § 13.05 (2018).
Transformative Use – Examples
Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2d Cir. 2014) - Several research universities created HathiTrust, a repository containing digital copies of millions of works, including full copies of numerous works protected by copyright. The works were electronically scanned and indexed by Google, allowing users to conduct keyword searches and view limited information about the works in which the search terms appeared, i.e., the page numbers and number of times the search terms appeared on each page. The search results did not display any text from an underlying copyrighted work. The creation of such a full-text searchable database was found to be a "quintessentially transformative use."
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d. Cir. 2006) - DK published a book outlining the cultural history of the Grateful Dead, which included numerous photos and other images, including reduced versions of several copyrighted concert posters. The use of the reduced concert poster images in a biographical work was found to be transformative because it was for a purpose plainly different from the original purpose for which the posters were created, i.e., to generate public interest in the Grateful Dead and to convey information to a large number of people about the band's forthcoming concerts.
Non-Transformative Use – Examples
Cambridge University Press v. Albert, 906 F. 3d 1290 (11th Cir. 2018) - Georgia State University maintained a system for electronic distribution of course materials to students enrolled in selected courses. The materials included digital excerpts of books marketed to university professors for use in academic courses. The use was found nontransformative because the excerpts were used for same intrinsic purpose as the original books.
Elvis Presley Enterprises v. Passport Video, 349 F.3d 622 (9th Cir. 2003) - Passport produced a 16-hour video documentary on Elvis Presley’s life, which included numerous copyrighted video clips, often overlaid with narration or commentary. The documentary also featured significant portions of Presley’s appearances on TV shows, shown without voiceover. The use of some TV clips was found transformative because they were cited as historical reference points in Elvis' life. But the use of many other TV clips was found nontransformative because they were used in excess of the permissible biographical purpose, and were used instead for the same purpose (entertainment) for which the clips were made originally.