This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. This comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye. Part I provides background information on the relationship between the author, reader, and text as outlined by Roland Barthes, general copyright law, Richard Prince, and the fabulist Jorge Luis Borges. Part II analyzes current thinking on the relationship between transformative use and fair use by focusing on the United States Court of Appeals for the Second Circuit's 2013 decision in Cariou v. Prince and its subsequent criticism by the Seventh Circuit in Kienitz v. Sconnie Nation LLC. Part III lays out a new two-part method for analyzing fair use based on transformative use and incorporating the four factors, and then applies that method to Richard Prince's appropriation of J.D. Salinger's The Catcher in the Rye. This comment concludes by noting that even the total appropriation of highly creative expression may be a fair use in a given circumstance if what is copied is contextually transformed.
Response or Comment
Brockenbrough A. Lamb, Richard Prince: Author of The Catcher in the Rye: Transforming Fair Use Analysis, 49 U. Rich. L. Rev. 1293 (2015).