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

January 2017New York City Bar Association

Barry Werbin joined several other current and former members of the New York City Bar’s Council on Intellectual Property in authoring “Second Circuit Fair Use Survey: Assessing the Impact of “Transformative Use” Theory, by case (1982-2016), a report presenting 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).  Covering the period from 1982-2016, the survey examines each decision  for its treatment of the four Section 107 statutory  fair  use  factors, and ultimately demonstrates the increasingly significant role that “transformative use” has played in shaping Second Circuit fair use jurisprudence and in shifting the law from a more pro-copyright owner stance to a more pro-user stance.  Barry, who first became involved in the project while serving as chair of the City Bar’s Copyright and Literary Property Committee, was assisted by Herrick associate Gabrielle Wilson.  To read the full report, please download the attached PDF or follow the link