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.
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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 fair use?
In a recent decision, the Second Circuit took a step towards drawing that line with a little more clarity, finding pop artist Andy Warhol’s use of a copyrighted photograph of musician Prince in a series of prints was not “transformative” and did not constitute fair use.
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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
Second Circuit Finds Andy Warhol’s Use of Prince Photograph Wasn’t All That Transformative After All Tuesday, April 6, 2021
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 fair use?
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