The U.S. Court of Appeals for the Seventh Circuit recently put the brakes on more than two decades of widespread judicial application of the “transformative use” test in assessing a fair use defense to infringement under §107 of the Copyright Act.1
In Kienitz v. Sconnie Nation,2 the court expressly rejected the concept of transformative use and, in particular, the Second Circuit Court of Appeal’s heavy reliance on that doctrine in Cariou v. Prince.3 This clash was perhaps inevitable, seeing that “transformative use” theory has been described as “a often highly contentious topic.”4 But some history is needed to understand the tension between the Seventh and Second Circuits, as well as various other circuit courts that have embraced transformative use doctrine.
