A transformative work is not a derivative work, although it might have started out that way. But instead of being a new spin on the original, or the original with something added, taken away, or changed, a transformative work is something entirely new that just uses elements from the original. It repurposes, recontextualizes and/or changes the work from which it borrows.
Transformative works pass the Fair Use first factor test (nature and character of the use) with flying colors. That is because a transformative work creates new ideas and knowledge, which the courts consider socially beneficial enough to fall under the Constitutional phrase, "to promote progress of science and the useful arts."
Transformative works pass the fourth factor test (market effect) equally well. That is because a transformative work is something entirely new that can't conceivably serve as a market substitution for the original work.
Examples of transformative works that have been accepted by the courts:
- resizing a images into thumbnails and putting them in a timeline
- inserting short clips from newscasts into a biographical documentary
- creating a searchable index of a text
Transformative Works Resources
If you're interested in this topic, you'll want to watch these two features about transformative works and remix culture:
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