Two Circuit Courts Disagree Regarding Copyright, Fair Use and Transformative Use Law

In a significant rebuff, the U.S. Court of Appeals for the Seventh Circuit recently questioned and disregarded the U.S. Court of Appeals for the Second Circuit’s analysis regarding the fair use and transformative use legal defenses to copyright infringement. 

In 2013, the Second Circuit had determined that, in Cariou v. Prince, an artist who transforms another’s work generally does not legally infringe on the original author’s work or intellectual property rights. In September of this year, the Seventh Circuit, in Kienitz v. Sconnie Nation reached different conclusions, while drawing attention to errors in the Second Circuit’s legal analysis. The Seventh Circuit questioned the following points regarding the Second Circuits analysis of the fair use and transformative use defenses:

• The Second Circuit based its analysis almost solely on whether or not the original work had been “transformed”.
• The Second Circuit did not take into consideration the differing motives of the original and transforming artists regarding the creation of the works in question, i.e. how and why something was being expressed.
• The Second Circuit did not require the transforming artist to comment on, reflect on, parody, satirize or otherwise offer new insights to the original work.
• The Second Circuit disregarded the central precepts of the Copyright Act pertaining to a copyright owner’s exclusive right to reproduce, distribute, perform, display, transmit or prepare derivative works based on his or her original work.

Kienitz v. Sconnie Nation involved the defendant using a photograph copyrighted by the plaintiff on a T-shirt. Despite the fact that the Seventh Circuit rejected findings of the Second Circuit in Cariou v. Prince, it decided for the defendant. It based its opinion on several concepts of the Copyright Act as well as the marketing effect of the artwork in question. The court described the Second Circuit’s laser focus on transformative use issues as “dangerous” to the future existence of derivative works. 

If you have questions regarding copyright infringement, contact Thomas M. Lancia.  Attorney Lancia has more than 25 years of legal experience and can provide sound advice. Call (212)964-3157 for a consultation today.