Historical Understandings of Derivative Works and Modern Copyright Policy

The Fair Use Doctrine allows unauthorized uses of copyrighted works by scholars, reporters, and parodists but does little to protect creative critics or non-commercial transformative works. The Fair Use Doctrine is valuable because it provides cover for criticism, derivation, and creativity using copyrighted works without requiring permission. It also acknowledges the derivative nature of much creation. To better protect derivative works and their authors, fair use must be modified in two ways. First, creative criticisms of non-technical works should receive stronger protection. Second, non-commercial derivative works should be presumptively fair use. These modifications will be a start towards protecting a large and vibrant community producing both creatively critical and entertaining derivative works borrowing from the settings, characters and concerns of earlier authors.