In an opinion by Circuit Judge Easterbook, the Seventh Circuit affirmed summary judgment for the defendant in a copyright infringement action on the basis of the "fair use" defense. Section 107 of the Copyright Act, 17 U.S.C. 107. Kienitz v. Sconnie Nation LLC, No. 13-3004 (7th Cir. Sept. 15, 2014). Here, defendant admitted using plaintiff's photograph of the Mayor of Madison, Wisconsin (somewhat modified) to make a political statement on t-shirts and tank tops (yielding a very modest profit) and to promote an annual street party opposed by the mayor.
The Court of Appeals rejected the lower court's focus on "just how 'transformative' the use must be ..." and its reliance on the Second Circuit's use of "transformativeness" in Cariou v. Prince, 714 F.3d 694 (2d Cir.), cert. denied, __ S.Ct. __ (2013). Slip Op. 3.
Judge Easterbrook's opinion states that "transformativeness" is "not one of the statutory factors ..." in Section 107, though it acknowledges that "the Supreme Court mentioned it in Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994)." Slip Op. 3-4.
The Seventh Circuit said "we're skeptical of Cariou's approach, be cause asking exclusively whether something is 'transformative' not only replaces the list in 107 but also could override 17 U.S.C. 106(2), which protects derivative works." The court concluded, "[w]e think it best to stick with the statutory list, of which the most important usually is the fourth (market effect)." Slip Op. 4.
The Seventh Circuit's opinion perhaps understates the discussion of "transformative use" in the Supreme Court's decision in Campbell as part of the first fair use factor (purpose and character of use). But it does seem that "transformative use" has become almost the single touchstone for decision in many fair use cases -- contrary to the way it was originally discussed by Second Circuit Judge Level in his article, Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) and by the Supreme Court in Campbell -- merely as a way of analyzing the first fair use factor.
In any event, the "transformative use" debate continues unabated.