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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