On the other hand, in some court cases, the justification for transformative use can undermine the other factors meant to safeguard the rights of Copyright holders, which must be overcome in order to claim fair use. This can have a negative effect on the incentive to create by tipping the balance of the Copyright system in a direction in which the rewards for creativity and innovation. One such lawsuit, as mentioned earlier, is the Salinger v. Random House, Inc. and Ian Hamilton court case. This dispute over copyright infringement, involved an author, a biographer, and, as the judge of the case, Judge Pierre N. Leval.
The biography of J.D. Salinger by Ian Hamilton contained the contents of a number of unpublished letters by Salinger. These letters are protected under the Copyright law, so in order to avoid obvious infringement, Hamilton paraphrased Salinger’s letters. However, his paraphrases of the letters were extremely close in similarity, replacing only a few words within those passages with words of close relation to one another, and taking the most interesting information from the letters for the biography (“Salinger v. Random House and Ian Hamilton”). Leval, in his analysis of the case, viewed that the amount of which Hamilton copied the unpublished letters was “minimal” and added up to fewer than “30 instances,” claiming that the use was fair and transformative (“Salinger v. Random House, Inc.”). However, these “30 instances” likely only dealt with the direct quotes Hamilton used from Salinger’s letters, not the paraphrases (“Salinger v. Random House and Ian Hamilton”). In his decision, Leval ignored the second factor of the Fair Use Doctrine, “the nature of the copyright work,” by denying Salinger his right to first publication of his unpublished letters. Also, in not observing the similarities between the biography’s passages about the letters and the letters themselves, the judge did not properly assess the quantity of the amount of copyrighted material “used in relation to the copyrighted work as a whole.” Lastly, Leval does not take into account the “effect” the biography’s use of copyrighted material from the letters would have on the “potential market for or value of the copyrighted work,” had Salinger decided to publish these letters (“Salinger v. Random House, Inc.”). By ignoring these essential factors, Leval disrupted the balance of the Copyright law, whose main purpose is to protect the intellectual property of copyright holders from being unfairly used by others.
Following Leval’s decision on the case, as the New York District judge at the time, the case was appealed to the U.S. Court of Appeals for the Second Circuit where it was “reversed and remanded.” Orders were also given to prohibit “publication of the biography in its present form” (“Salinger v. Random House, Inc.”).