Item Favoring Fair Use
Tranformative or Productive use (changes the work for new utility)
Explanation
A transformative use of copyrighted materials takes place when a new work is created that has a different use. An example of that is a recent court case beautifully summarized by Mary Minlow.
Of special interest to libraries, archives and educational institutions is a recent 9th Circuit decision that found this factor in favor of an operator of a visual search engine. Arriba-Soft was sued by a professional photographer whose photographs were copied (in thumbnail form). The court said that the search engine was designed to "catalog and improve access to images on the Internet," and was thus considered a "transformative use" (i.e., it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.) Further, the thumbnail form made it unlikely that users would enlarge the images for the original, artistic purpose because of the low quality. Kelly v. Arriba-Soft, 03 C.D.O.S 5888 (9th Cir. 2003).
