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2nd Circ.'s Latest Guidance On 'Transformative' Fair Use

In TCA Television Corp. v. McCollum, 839 F.3d 168 (2d Cir. 2016), the Second Circuit provided guidance regarding how courts should analyze “transformativeness” under the fair use doctrine. The court held that a near-verbatim recitation of Abbott and Costello’s comedy routine “Who’s on First?” in a play was not fair use. Past cases, including from the Second Circuit, had suggested that a use of an unaltered work incorporated into a larger work could be transformative so long as the use changed the meaning or expression of the larger work as a whole. The court’s apparent departure from that conclusion could signal a trend toward requiring the use of the copyrighted work itself — apart from the larger work into which it is incorporated — to be transformative, and practitioners would be wise to note this potential trend from a circuit considered a leader in copyright law.

“Transformativeness” Under the Fair Use Analysis

The Copyright Act does not define “transformativeness” as a factor in the fair use analysis. “[T]he fair use of a copyrighted work” includes uses “for purposes such as criticism, comment, news reporting, teaching ... , scholarship, or research.”

Congress provided four factors for courts to weigh in the fair use analysis: (1) the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

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