Fair use in the United States: Transformed, deformed, reformed?

Since the United States Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor, “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth, withered into restatements of the first. Lately, however, courts are expressing greater scepticism concerning what uses actually “transform” the original content. As a result, courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The article concludes with some suggestions for rebalancing the factors.