Saturday, September 30, 2023

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

Another law review article hot off the press. This time authored by our good friend, Dan Brooks, counsel for Patrick Cariou in the infamous Cariou v. Prince appropriation/copyright infringement case.

Brooks’ thesis,

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.

This Article discusses how the entrenched and multi pronged fair use doctrine gave way to the unitary “I know it when I see it” approach. This Article will also discuss a solution to reverse this anomalous trend. The solution proposed in this Article giving effect to the statutory text would provide fair use protection only where there is a sufficient reason for copying a particular original work and where, because the market cannot be relied upon to allow a socially beneficial transfer of rights, the copying must be done without obtaining the copyright owner’s consent.

The stack of good reads is piling up.


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