Legal Question in Intellectual Property in California

Well, no, not transformative. But, yes, I would argue that this falls under the fair use guidelines because you are directly commenting on the piece much in the same way a film critic uses a clip to illustrate his critique.

You should keep in mind that no one can offer any conclusions here, but rather only general insights. And "fair use" is only a legal defense. At any time if a copyright owner gets ticked off by your use they are still free to drag you into court and force you to defend your use as fair. This is less likely when that defense is an obvious one, but it happens especially when dealing with a bitter and highly litigious plaintiff.

You may want to get a proper opinion in private. If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.

Kind regards,

Frank

www.LanternLegal.com

866-871-8655

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DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.

You are confusing disparate copyright principles. "Transformative" has nothing to do with Fair Use, it is a judge-made defense to copyright infringement for creating a derivative work. What you describe would probably not be considered a derivative work. It would fall in the category of criticism of a work--the way a film critic might comment on a film.

The Fair Use Doctrine is contained within the Copyright Act to allow the use of excerpts from copyrighted material for (primarily) criticism and educational purposes. It is not an automatic right, as some people mistakenly believe, but what lawyers call an "affirmative defense" (something you can use to excuse yourself if you are sued for infringement). If the materials you are creating are educational in nature and you use an excerpt from a copyrighted work to comment on that work, you would most likely be able to assert your use was a Fair Use under U.S Copyright law.

If you are concerned, you should consult with a qualified copyright attorney and show him/her exactly what you are doing. Then, the attorney could give you an opinion you could rely on.