The U.S. Court of Appeals for the Seventh Circuit recently put the brakes on more than two decades of widespread judicial application of the “transformative use” test in assessing a fair use defense to infringement under §107 of the Copyright Act.1

In Kienitz v. Sconnie Nation,2 the court expressly rejected the concept of transformative use and, in particular, the Second Circuit Court of Appeal's heavy reliance on that doctrine in Cariou v. Prince.3 This clash was perhaps inevitable, seeing that “transformative use” theory has been described as “a often highly contentious topic.”4 But some history is needed to understand the tension between the Seventh and Second Circuits, as well as various other circuit courts that have embraced transformative use doctrine.

Origins

The concept of “transformative use” dates back to a seminal 1990 Harvard Law Review commentary entitled “Toward a Fair Use Standard”5 by current Second Circuit Judge Pierre N. Leval, who laid out a proposed analytical approach to assessing fair use. Frustrated by the absence of specific guidance from Congress when it enacted §107, and a lack of consistency and agreement among judges in their respective approaches to fair use, Leval postured that while

no simple definition of fair use can be fashioned … recognition of the function of fair use as integral to copyright's objectives leads to a coherent and useful set of principles. Briefly stated, the use must be of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity. One must assess each of the issues that arise in considering a fair use defense in the light of the governing purpose of copyright law.