Circuit Courts Split on Copyright Fair Use Analysis

JD Supra has an interesting article on last week’s ruling by the 7th Circuit Court of Appeals in Kienitz v. Sconnie Nation LLC, No. 13-3004, 2014 WL 4494825 (7th Cir. Sept. 14, 2014).  In Kienitz, the 7th Circuit affirmed a summary judgment ruling by the U.S. District Court for the Western District of Wisconsin for the defendant Sconnie Nation, holding that the defendant’s alteration and use of plaintiff Kienitz’s photograph of Madison mayor Paul Soglin was a permissible fair use under the Copyright Act.  Notably, the 7th Circuit criticized and declined to follow the “transformative use” analysis recently adopted by the 2nd Circuit in Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013).  As the article notes, while the 2nd Circuit’s “transformative use” analysis has come under criticism before, “Kienitz is the first Circuit-level critique of Cariou” and “represents the genesis of a noteworthy Circuit split on the correct application and significance of a work’s ‘transformative use’ on the fair use inquiry.”  Read the full article here, and the 7th Circuit's opinion here.

 By walknboston (Flickr: Gavel) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.

By walknboston (Flickr: Gavel) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.

Reposted from JD Supra.