April 26, 2013

Second Circuit Decision Gives Artists Substantial Leeway to Transform Copyrighted Works for Artistic Purposes

Emerging Trends is a regular feature from Kaye Scholer, highlighting emerging legal or business issues and the potential impact such issues may have for companies or executives operating in a particular space. Below, Kaye Scholer Intellectual Property Partner Paul Llewellyn and Counsel Richard De Sevo discuss yesterday’s copyright ruling in Cariou v. Prince, 2013 U.S. App. LEXIS 8380 involving the application of the fair use doctrine to artistic works.

A Second Circuit panel has unanimously held that the use of copyrighted photographs “as raw material” to create new works can constitute fair use even though the new works do not “comment” on the plaintiff photographer, the photographs “or on aspects of popular culture closely associated with” the photographer or the photographs.    

Rejecting the district court’s conclusion that the defendant must “transform” the copyrighted work for one of the specific purposes mentioned in the fair use provision of the Copyright Act – “criticism, comment, news reporting, teaching . . ., scholarship, or research” – the Second Circuit held that “alter[ing] the original with ‘new expression, meaning, or message’” to create new works that differed in composition, presentation, scale, color palette and media, could also constitute fair use. 

The Court’s expansive view of fair use should provide artists with substantial leeway to transform copyrighted works for artistic purposes, although the Court’s failure to provide a clear standard by which it determined that 25 of the 30 photographs were fair use as a matter of law will likely result in additional litigation as courts struggle with defining the application of fair use to artistic works.  Undoubtedly, courts also will be asked to address the extent to which the Second Circuit’s analysis of fair use in Cariou applies outside the context of artistic works.

A copy of the full decision can be seen here.

Paul Llewellyn, Co-Head of the firm’s Trademark, Copyright and False Advertising Group, has extensive experience in intellectual property related matters, including trademark infringement, trademark counterfeiting, licensing, copyright, design patent, false advertising and consumer fraud litigation. Paul also has substantial experience in trademark clearance and registration, transnational trademark enforcement and protection, intellectual property licensing, trade secret protection, defamation and right of publicity matters, as well as intellectual property due diligence arising from corporate transactions.  He can be reached at

IP Counsel Richard A. De Sevo has extensive litigation, class action and counseling experience in trademark, trade dress, false advertising, consumer fraud and copyright matters. Contact Richard at

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