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“Rectifying Fair Use after Cariou v. Prince: Reviving the Forgotten Statutory Text and Requiring that Unauthorized Copying Be Justified, Rather than Merely ‘Transformative'”

On January 1, 2015 by Schnader

Partner Daniel Brooks authored “Rectifying Fair Use after Cariou v. Prince: Reviving the Forgotten Statutory Text and Requiring that Unauthorized Copying Be Justified, Rather than Merely ‘Transformative'” for the Chicago-Kent Journal of Intellectual Property. Recent court decisions, epitomized by the Second Circuit’s majority opinion in Cariou v. Prince, have applied the fair use doctrine in a manner that undermines the rights of copyright owners by permitting wholesale, unauthorized appropriation of their works, provided only that the otherwise infringing secondary use is perceived-by the judge or judges randomly assigned to hear a particular case-as being “transformative.” Applying this standard, courts have ruled in favor of appropriators of copyright owners’ works. Under Cariou, the determination of transformativeness is based on a subjective “side-by-side” comparison of the contents of the original and secondary works, without any consideration of the appropriator’s stated purpose. This analysis also fails to ask whether it was necessary to borrow the particular copyrighted work in the first place, let alone whether it was necessary to do so without paying a licensing fee.

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