THE TRANSFORMATIVE USE DOCTRINE AND FAIR DEALING IN NIGERIA COPYRIGHT SYSTEM: A REVIEW OF U.S. SUPREME COURT DECISION IN ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. V. LYNN GOLDSMITH, NO. 21-869 (U.S. MAY 18, 2023)

Abstract

A transformative work, better put ‘distinct enough’ is one that imbues the original ‘with a further purpose or different character, altering the first with new expression, meaning, or message’. Given that the wordings of the first statutory factor of fair dealing under section 20(1)(i) of the Nigeria Copyright Act, 2022, for all intent and purposes, is closely related to the provisions of sections 107 and 35(2)(a) of the United States of America and Singapore Copyright Act respectively, same with the three other statutory factors. This article will focus on the evaluation of this first fair dealing factor, and the potential application of the transformative use doctrine. It neither intends to examine the fair dealing defence in its entirety nor to explore the interaction of various factors of fair dealing. This article argues that the type of activity fair use doctrine intends to protect for the enrichment of society ought to be a secondary use that adds value to the copyrightable expression in an original work; as raw material, transformed in the creation of new information, new aesthetic, new insights and understanding. Examining the recent US Supreme Court decision in Andy Warhol v Lynn Goldsmith demonstrates that fair use is an objective inquiry into what a user does with an original work, not an inquiry into the subjective intent of the user. This decision relieves judges of the qualification to evaluate the aesthetic merits of a work of art. It is argued that the narrower version of fair dealing/use is purpose specific and do not allow for a very flexible and expansionist interpretation. Essentially, derivate right (adaptation) principle has attributes of transformative use, therefore, restraint should be exercised to avoid infringing on the statutory derivative right of a plaintiff original owner under the guise of transformative use. The position of the US Supreme court therefore is a water shed to Nigerian courts and shall be useful for the pleading of the fair dealing defence, and shall be a persuasive force to transformative use doctrine.