In a wonderful, but lamentably forgotten book, "Exemptions and Fair Use in Copyright" (1978) (still in print and available at amazon.com) the late Leon Seltzer (1918-1988), a lovely and scholarly man I am very happy to have met, proposed a unified theory of fair use under the name "productive use." According to Dr. Seltzer, a productive use was one in which one author, using reasonable portions of the work of a prior author, creates a new work. That new work adds to the fount of public knowledge. This theory was embraced wholeheartedly by the Ninth Circuit in Sony, and while criticized as constituting an absolute rule, it was not entirely discarded by the Supreme Court in that case. Justice Stevens wrote that "Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of interests. The distinction between 'productive' and 'unproductive' uses may be helpful in calibrating the balance, but it cannot be wholly determinative. "
In 1990, Judge Pierre Leval wrote his path breaking article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), in which he proposed the term "transformative use,":
"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."
Note that Judge Leval's description begins with the word "productive."In Ty, Inc. v. Publications Int'l, Ltd., which I argued before the Seventh Circuit, Judge Posner took issue with at least the term "transformative use," and perhaps more:
"The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly--said to be between "transformative" and"superseding" copies, see, e.g., Campbell) is illustrated not only bythe difference between quotations from a book in a book review and the book itself ... but also by the difference between parody (fair use) and burlesque (often not fair use). A parody,which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original's market, are not fair use."
Some may disagree with Judge Posner's binary movie examples, and I would be interested to know how such disagreements impact on one's assessment of his approach in general. I am also interested in how helpful the use of such labels is. "Transformative" seems to imply actually changing the original, although a book review, a classic fair use, doesn't. "Productive" use seems to apply the same type of concept, while "complementary" might be construed as too narrow. So any of these labels cover (affirmatively or negatively) uses of works as in Google? How much help are they? Why do we use them, and can we live, profitably without them?