Two Federal Appellate Courts are duking out whether putting your own spin on someone else’s copyrighted work is enough for a fair use defense. The Copyright Act gives us four factors to look at for fair use: (1) the purpose of the use; (2) the nature of the work; (3) how much of the work is used; and (4) the effect the use has on the market for the original work.

The Second Circuit Court of Appeals says that any transformative use of a copyrighted work is fair use (Cariou v. Prince). I've included a comparison of one of Cariou's original photos and Prince's changes to the photo. Do you think the second photo is fair use of the first?

The Seventh Circuit Court of Appeals thought the Second Circuit went too far in hinging everything on transformative use. In a more recent case, the Seventh Circuit says that fair use isn’t designed to ‘protect lazy appropriators’ (Kleintz v. Sconnie Nation LLC).

So you shouldn't let transformative use trump all of the other factors.

TAKE AWAY: Here’s a quick quiz:

  1. Can you use a photo you got from Google Images on your website?
  2. Can you quote someone else’s book?
  3. Can you use a movie clip you got from YouTube in your PowerPoint presentation?
  4. Can you copy your competitor’s catalogue but change the name of the company and the contact information?

Answers: (1) Probably not. Just because it’s on the Internet doesn’t mean it’s free. If you’re using it on your website, you’re making commercial use of someone else’s work without their permission; (2) Probably. It will depend on what you’re using it for and how much you’re using; (3) Maybe or maybe not. It will depend on what you’re using it for and how much you’re using; and (4) No.

As you can see, the answers aren’t always easy. If you’re serious about using someone else’s images, photos, content etc., it’s worth getting a right to use opinion.

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