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The Lost Language of the First Amendment in Copyright Fair Use: A Semiotic Perspective of the “Transformative Use” Doctrine Twenty-Five Years On
David Tan
ARTICLE

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26 Fordham Intell. Prop. Media & Ent. L.J. 311
Article by David Tan*

It has been twenty-five years since Judge Pierre Leval published his iconic article, “Toward a Fair Use Standard,” urging that courts adopt a new guiding principle of “transformative use” to determine whether an unauthorized secondary use of a copyrighted work is fair. The Supreme Court’s emphatic endorsement of this approach in 1994 has resulted in a remarkable judicial expansion of the transformative use doctrine which today covers virtually any “creation of new information, new aesthetics, new in-sights and understandings.” While the Supreme Court reiterated in Golan v. Holder in 2012 that the fair use defense is one of copy-right law’s key “built-in First Amendment accommodations,” the influence of the First Amendment on the transformative use doc-trine remains largely unexplored over the years. This Article analyzes how the different theoretical underpinnings of the First Amendment and certain categories of First Amendment-protected speech have been accommodated within the transformative use doctrine, and shows how the First Amendment has been—and will continue to be—the invisible hand that shapes the development of copyright law. It also addresses the unrelenting frustration in assessing transformative use and urges a consideration for assistance from a semiotic perspective of the First Amendment to illuminate what really are cultural contestations of semiotic signs masquerading as copyright disputes.

 

 

* PhD (Melbourne); LLM (Harvard); LLB BCom (Melbourne). Vice Dean (Academic Affairs), Associate Professor, Faculty of Law, National University of Singapore. I would like to thank Professors Rochelle Cooper Dreyfuss, Graeme Dinwoodie, and Graeme Austin for their comments on an earlier draft presented at the Framing Intellectual Property Law in the 21st Century conference in Singapore, and Kenneth Wang Ye and Benjamin Foo for their research assistance.