Where probing the tension between copyright law, freedom of expression, and competition in the marketplace of ideas leads to the issue of unequal standing between copyright holders and the public, which was brought about by aggressive litigation practices that misused copyright law. An overreaching copyright culture may translate into the ability of copyright law to suppress transformative reuse. In fact, strong copyright protection for derivative use runs counter to the traditional mechanics of human creativity. Throughout history, the highest forms of creative works spread from the stratification of creativity. Today, by contrast, transformative use, characters and cultural icons are locked into the dungeons of copyright law. This prevents the cumulative development of pop culture that proved so fruitful in the oral-formulaic tradition, epic and romance literature, and the construction of most human art and culture. Extreme protection of derivative works – and a shrinking fair use doctrine – seems to turn transformative uses into a nuisance for society, rather than an opportunity.
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