A. The transformation problem in copyright
Copyright law grants ownership rights in ―works of authorship,‖1
and copyright disputes frequently require us to distinguish between two
different ways in which a ―work of authorship‖ may be ―transformed.‖
On one side of the line are changes whose end result is termed a
―derivative work,‖ and which are therefore subject to the exclusive rights
of the author.2 On the other side are changes resulting in a
―transformative fair use,‖ which fall outside those rights.3
It can be very difficult to distinguish between the two with
confidence, because the boundary between them is determined by the
interplay between two open ended doctrines. The first is ―substantial
similarity,‖ which describes the relationship two works must have if one
is to be regarded as constituting either a ―reproduction‖ or a ―derivative
work‖ of the other.4 Though one would expect the category of