In the span of two weeks, decisions from the Supreme Court and the Court of Appeals for the Second Circuit manifest the complex nature of the copyright doctrine of fair use and how its contextual application can lead to opposite results.
In 2013, the Second Circuit issued its controversial decision in Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013), in which it “rejected the proposition that a secondary work must comment.
(2006):
The court held that Koons s use of
the advertisement on the left was a transformative use when
incorporated in the work on the right:
Cariou v. Prince (2013):
Prince s use of Cariou s photos on the left to create the
work on the right was held to be transformative as a matter of
law:
By contrast, the Second Circuit held that it could not conclude
as a matter of law that Prince s use of the photo on the left
to create the work on the right was transformative:
Based on this survey, the court concluded: A common thread running through these cases is that, where
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