To print this article, all you need is to be registered or login on Mondaq.com.
For nearly two decades, the "transformative use test"
has been a staple of fair use analysis, and particularly in the
Second Circuit. The Copyright Act, however, uses the word
"transformative" not in the section on fair use but in
defining derivative works. The distinction is critical: fair
use is a complete defense to infringement, while creation of an
unauthorized derivative work is itself infringement. Courts,
practitioners, and creators alike have struggled to draw the line:
when is a transformative use an infringing derivative work versus