미국의 공정이용법리에서‘변형적 이용’ 기준의 기원과 의의

초록

This article deals with the concept issue on what ‘transformative use’ means in the fair use context. This issue is also can be spoken out as “whether a single and universal test of transformative use is possible, which can be applied to all patterns of use.”To find an answer to this question, this article first tries to understand what exactly Judge Leval meant by ‘transformative use’ when he used the term first in his foundational article “Toward a Fair Use Standard” and in what context. The transformative use test was proposed by Judge Leval after his two cases had been reversed in the appellate court. And the defendants in those cases wrote biographies by using copyrighted and unpublished letters and other private documents. This article suggests that the transformative use test have not been applied consistently because the fact patterns of the relevant cases are so diverse that courts could not create a universally applicable black letter law. Judge Leval himself objected to “adopt a bright-line standard.” And this article also suggests that a pattern-oriented rule is more preferable to a bright-line rule.

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