Vote Neg for parodies – traditional contours of copyright are interpreted liberally which allows for the constraintment of free speech. Only a countercultural agenda that reads works of copyright semiotically as a unity of cultural meanings capable of being opposed and disrupted discerns a different purpose in copyright fair use.

The US Supreme Court in both Golan v. Holder and Eldred v. Ashcroft held ‘the “traditional contours” of copyright protection, i.e. the “idea/expression dichotomy” and the “fair use” defense … are recognized in our jurisprudence as “built-in First Amendment accommodations” ’. In particular, the fair use defense as codified in 17 U.S.C. § 107 ‘allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances’. It is unsurprising that in the context of a robust free speech culture emboldened by the First Amendment, US courts have interpreted the notion of transformative use liberally—and consequentially the fair use defense—when the freedom of speech would be unduly constrained by enforcement of the rights of copyright or trademark owners. One of the most significant contributions semiotics can bring to copyright law is in the analysis of fair use. In copyright fair use, the pertinent inquiry is whether the secondary work ‘adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message’. Brian Holland postulates that ‘the prevailing conception of transformativeness [in copyright fair use] is one of romantic authorship, evidenced by a defendant’s authorial purpose or activity’ and proposes an approach ‘grounded in social semiotic theory [that] attempts to account for the multiple and divergent meanings created as various interpretive communities engage a particular work’. However, contrary to Holland’s observations that the US courts currently focus on the degree to which a defendant has engaged in authorial activity in the fair use analysis, the current approach of the US Second and Ninth Circuit Court of Appeals appear to accommodate the shifting of the transformativeness inquiry from locating an authorial presence or authorial activity, to one of reader interpretation, i.e. whether one might reasonably perceive the creation of ‘new information, new aesthetics, new insights and understandings’. As Laura Heymann points out, ultimately, the question is whether the resulting work ‘is transformative in its meaning—that is, whether the reader perceives the second copy as signifying something different from the first’. Potentially when one analyses a work of copyright, one can read it semiotically as embodying a unity of modern cultural meanings capable of being opposed or resisted (through ‘countercultural’ means such as parody), or one can regard it as possessing polysemous qualities which may be contested or disrupted (through ‘subcultural’ practice such as bricolage or pastiche). A countercultural or counterpublic agenda may be best communicated to mainstream society through the use of widely recognized semiotic signs to which the public have ascribed particular representative values or characteristics. Parodies, fan fiction, and appropriation art are the best examples of trans-coding practices where an irreverent portrayal of an iconic literary, dramatic, musical, or artistic work has recoded its semiotic meanings to express a different or counter-viewpoint creating new insights and understandings, thus rendering the secondary use ‘transformative’ in nature. Rebecca Tushnet explains that ‘[t]ransformativeness in fanworks takes many forms, from critique to celebration to reworking a text so that it better addresses the concerns of a specific audience’. Courts may find ‘a legitimate transformation exists when the new work makes overt that which was present in the original text covertly … transformative fair uses make subtext text’. The use of semiotics to discern a different ‘purpose or character’ a recoded or subverted sign offers is undoubtedly valuable to the transformative use inquiry in copyright fair use. Research materials for the study of works of copyright as culturally coded signs may be found in scholarly literature published in the fields of cultural studies, media studies, film studies, and fine art critical studies.