Fair Use Revisited – What’s Transformative?

Last month, photographer Peter Cariou petitioned the Supreme Court to overturn the Second Circuit ruling in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), a copyright infringement case, in which the Second Circuit held that twenty five artworks created by the appropriation artist Richard Prince–which incorporated Cariou's original photographs–were fair use and non-infringing.

At center in this case is the tension between appropriation art, which is based on the idea of taking original works of others and creating different works with a new meaning and esthetics, and the rights of copyright owners of the appropriated works.

Whether or not a piece of appropriation art qualifies as fair use often depends on whether the appropriation art work is found to be transformative. As initially developed by Judge Pierre Leval in an article Toward the Fair Use Standard, 103 Harv. L. Rev. 1105 (1990), and subsequently adopted by the Supreme Court in Campbell v. Acuff-Rose Music,