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Articles

The Changing Landscape Of Fair Use: 'Transformative' Is Key

April 23, 2015

Articles

The Changing Landscape Of Fair Use: 'Transformative' Is Key

April 23, 2015

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North Jersey Media Group Inc. v. Pirro and Fox News Network LLC, 13 U.S.P.Q.2d (BNA) 2010 (S.D.N.Y. 2015), is the latest in a recent line of fair use cases from the Second Circuit that are changing the landscape of the fair use defense in copyright law. Traditionally, fair use has been a very fact-based analysis in which courts considered each of the four statutory fair use factors, even if they did not weigh each factor equally. While that is still largely the case, it seems that, these days, the first factor — whether or not the use is “transformative” — has become the defining issue in the fair use analysis, to the point where it now overshadows the other three factors.

The importance of whether a use is “transformative” was established in 1994 by the U.S. Supreme Court in Campbell v. Acuff-Rose, which, in quoting a Harvard Law Review article by Judge Pierre Leval, held that, whether a work is transformative lies at the heart of the fair use inquiry and its purpose of promoting science and the useful arts. But the parody in the Campbell case fit squarely within the traditional parameters of fair use, and the court had emphasized that, whether the new work commented on or criticized the original work was still an essential element of determining if a use was fair.

This article first appeared on law360.com on April 22, 2015, and can be read in its entirety here.

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