(Mis)appropriation Art: Transformation and Attribution in the Fair Use Doctrine

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Vol: 15, Issue: 1, Page: 163

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Zwisler, John Carl
Intellectual Property Law; Law
article description
Since the adoption of transformation by the Supreme Court, judicial decisions have continued to expand the fair use doctrine. Relying on transformation has led judges to subjectively critique and analyze artwork in order to make a legal decision. However, while a majority of circuits apply transformation, it is not followed by all of them. Transformation should no longer be a requirement in a fair use analysis concerning appropriation art, because it first requires subjective interpretation of an artist’s work. Transformation also gives an advantage to artists appropriating the work, claiming fair use of another’s copyrighted work. Instead, the emphasis should be on the overall effect on the market for the original work by the secondary use, with special consideration given to how attribution to the original author aids in the fair use test.