Committee Reports

Second Circuit Fair Use Survey: Assessing the Impact Of “Transformative Use” Theory, by case (1982-2016)


The IP Council (Dale M. Cendali, Chair) issued a report entitled, “Second Circuit Fair Use Survey: Assessing the Impact of “Transformative Use” Theory, by case (1982-2016).”  The report presents a detailed survey of all fair use decisions issued by the Second Circuit since the era of the Supreme Court’s landmark decision in Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), and examines the impact of the “transformative use” theory (originally expounded by Second Circuit Judge Pierre Leval in a 1990 Harvard Law Review commentary) on fair use jurisprudence. Each decision in the survey was examined for its treatment of the four factors set forth in Section 107 of the Copyright Act, which federal courts must assess in every fair use case. Not surprisingly, the report demonstrates that “transformative use” has played an increasingly significant role in shaping Second Circuit fair use jurisprudence and has shifted the law from a more pro-copyright owner stance to a more pro-user stance.