7th Circ. Joins Chorus Of Cariou Critics

Law360, New York (September 19, 2014, 5:32 PM EDT) -- When the Seventh Circuit said Monday that it was skeptical of the approach taken by the Second Circuit in finding that appropriation artist Richard Prince mostly made fair use of dozens of Patrick Cariou's copyrighted photos, it adopted a fairly common criticism these days: Courts are placing too much emphasis on transformative use when considering fair use.

“Asking exclusively whether something is 'transformative' not only replaces the [other fair use factors] but also could override Section 106(2), which protects derivative works,” U.S. Circuit Judge Frank Easterbrook wrote Monday in Kienitz v. Sconnie Nation LLC.

"Cariou and its predecessors in the Second...

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