Do appropriation artists have something new to worry about?

At least under the Second Circuit umbrella? Scott Alan Burroughs seems to think so, first taking sharp jabs at the Second Circuit’s Cariou v. Prince opinion:

One of the more off-base elements of [the Cariou v. Prince] decision was the Second Circuit’s conjuring and application of the “transformative” fair use factor, which supposedly looks to how the unauthorized use “transforms” the original work. If this factor seems amorphous and out-of-place in a field of law that is well-delineated by the Copyright Act, that is because it is appears nowhere in the Copyright Act’s express list of fair use factors.

Burroughs then notes that a more recent Second Circuit decision may just right this “fair use” wrong:

[In Fox News Network, LLC v. TVEyes, Inc, the Second Circuit] saw through TVEyes’ claims of transformation and noted that the company was “unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license.” Notably, the analysis looked to the market effect (a factor expressly stated in the Copyright Act) and placed less emphasis on the transformation of the use (which is not).

More here.