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Expert Analysis

The Changing Landscape Of Fair Use: 'Transformative' Is Key

Law360, New York (April 22, 2015, 10:54 AM EDT) -- North Jersey Media Group Inc. v. Pirro and Fox News Network LLC, 13 U.S.P.Q.2d (BNA) 2010 (S.D.N.Y. 2015), is the latest in a recent line of fair use cases from the Second Circuit that are changing the landscape of the fair use defense in copyright law. Traditionally, fair use has been a very fact-based analysis in which courts considered each of the four statutory fair use factors, even if they did not weigh each factor equally. While that is still largely the case, it seems that, these days, the first factor — whether or not the use is "transformative" — has become the defining issue in the fair use analysis, to the point where it now overshadows the other three factors....

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