One of the thorniest questions faced by intellectual property lawyers advising clients on copyright matters is what constitutes “fair use” of a protected work. With the explosive growth of user-generated content, the artistic ideas of sampling, repurposing and appropriation have become common in broader contexts, and the social media economy is, to a certain extent, built on the idea that works gain value as they are shared and commented on. But the rights of content creators must also be protected if those communities are to continue to exist. Lawyers and judges called on to examine and balance these issues tend to fall back on familiar tools, and for the last 20 years or so, the touchstone of fair use analysis has been a concept that does not actually appear in the Copyright statute: the question of whether the use is “transformative.”

Transformative use analysis can be particularly challenging when it comes to art and artistic commentary. Comparing artistic works—and balancing their contextual similarities and differences—can be challenging, sometimes with the result that “courts knowingly or inadvertently rely on aesthetic theories of interpretation.” Robert Kirk Walker & Ben Depoorter, “Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard,” 109 NW. U.L. REV. 343, 368 (2015). While it may seem surprising that a court would undertake that sort of aesthetic analysis, particularly on summary judgment, that is exactly what is called for by the current law of fair use. It is easy to forget that the U.S. Supreme Court's 1994 opinion in Campbell v. Acuff-Rose, 510 U.S. 569 (1994), a landmark in fair-use law, was also a landmark in hip-hop, with 2 Live Crew and Roy Orbison squaring off before the court. The doctrine and the genre have been intertwined ever since. For example, in 2003, Judge Gerard Lynch of the Southern District of New York ruled that fair use protected a song by Ghostface Killah, a member of rap's iconic Wu-Tang Clan, that began with an off-key rendition of the classic song “What a Wonderful World.” Judge Lynch observed that Ghostface had not merely parodied the song, he used it to set up a “contrast between the assertedly delusional innocence of mainstream culture and the purportedly more realistic viewpoint of the rapper.” Abilene Music v. Sony Music Ent., 320 F. Supp. 2d 84, 91 (S.D.N.Y. 2003). This, the court ruled, was transformative.

Similar (if less dark) issues informed the court's recent analysis in Estate of Smith v. Cash Money Records. There, the court again addressed the question of when an artist is protected even though he indisputably uses portions of a copyrighted work. Judge William Pauley III's discussion of transformative use in that case is worth a closer look: It is interesting and informative not only from a legal point of view, but from an aesthetic and philosophical one.