The article discusses courts’ evolving definition of “transformativeness” with respect to the fair use defense under copyright law. The article focuses primarily on the recent landmark Second Circuit case Cariou v. Prince. In Cariou, photographer Patrick Cariou filed a lawsuit against well-known appropriation artist Richard Prince, alleging copyright infringement for Prince’s use of Cariou’s photographs in a series of works. The lower court held that Prince’s artwork was not transformative because, among other things, Prince’s work did not “comment on” Cariou’s appropriated photographs. The Second Circuit reversed this ruling, holding that a work is transformative, and thus immune from a copyright infringement claim, if it has altered the original with “new expression, meaning or message.” In addition, the court, in keeping with other recent decisions in the copyright fair use context, dispensed with the remaining statutory fair use factors relatively quickly. As such, Cariou represents, among other things, the increasing primacy of transformativeness above all else in assessing the validity of a fair use defense.
Accordingly, the authors conclude that “for now, the most important inquiry in assessing a potential fair use defense is to analyze whether or not the allegedly infringing work is transformative as a matter of law.” This, however, remains easier said than done, as the authors note, since courts continue to take a variety of approaches in conducting such analysis.