In two recent decisions concerning copyright’s fair use doctrine, the Second Circuit addressed the lawfulness of incorporating one creative work into a new one. In both Cariou v Prince and Salinger v Colting, US District Judge Deborah Batts enjoined similar activity using nearly identical reasoning. But on appeal, the Second Circuit found fair use in the former and likely infringement in the latter. In this short essay, we welcome the Cariou decision’s shift away from the singular, subjective intent of the putative fair user towards a more audience-focused inquiry. When Cariou is compared with Salinger, however, we are concerned that this shift introduces a new set of distributional problems into the fair use analysis.
In particular, why does a substantial reworking of Catcher in the Rye interfere with J.D. Salinger’s “right not to authorize derivative works” while Patrick Cariou’s photographs are the “raw material” for the “well-known appropriation artist” Richard Prince? Is a use fair only if Anna Wintour, Brad Pitt, and Beyoncé are there to see it? We recognize that courts must have a means of distinguishing “transformative” uses from “market substitutes,” but in doing so we hope that courts do not convert the right to rework, comment on, or otherwise engage with creative works into a privilege largely reserved for the rich and famous.
Full article available at the University of Chicago Law Review.