While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use “transformativeness” inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works.

Courts should apply the aesthetic nondiscrimination principle to both copyright and fair use. In other words, “transformative” should just mean “different,” and courts evaluating a fair use claim should simply ask whether the use changes the copyrighted work in any way, including context, and should not ask whether that change is substantial or valuable. While this would substantially narrow the scope of the derivative works right, it would almost certainly increase social welfare by encouraging the production of derivative works, without materially affecting the incentives to create works of authorship.