The recent Kienitz v. Sconnie Nation case has been the focus of three recent posts in this Intellectual Property Issues series – from me, Doug Lichtman, and Rod Smolla. In Kienitz, the defendant changed a photograph of the mayor of Madison, Wisconsin, into a stylized, high-contrast image, printed on t-shirts that mocked the mayor’s policies. The U.S Court of Appeals for the Seventh Circuit held that the new image constituted a fair use and therefore did not infringe the photograph’s copyright. (The original photo and the stylized version on the t-shirt can be seen here.) In doing so, however, the court took the opportunity to criticize a concept that many other courts have employed as a central part of the fair use analysis: whether the defendant’s use was “transformative.”

Given all this attention to Kienitz, I’ve decided to step back and talk about the role that transformation plays in fair use and in copyright more broadly. In this essay, I will trace the origin of transformation as a guiding principle, through what I’ll call “expressive” transformation cases. In my next post I will discuss how the principle has more recently been applied to encompass what I call “purpose” transformation. [...]

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