The US Court of Appeals for the Second Circuit has held that a secondary use of a copyrighted work does not require comment on the original artist or work in order to qualify for the fair use defense to infringement under the Copyright Act.  The lower court in Cariou v. Prince, had issued an injunction against Prince and the gallery that displayed his work with respect to their continued altered use of 25 paintings originally found in Cariou’s book.  The lower court also imposed a requirement that the new work had to comment on or refer back to the original work in order to qualify as fair use.  The Court of Appeals disagreed and noted that the law imposes no requirement that a work comment on the original or its author in order to be considered transformative and a secondary work may constitute a fair use even if it serves some purpose other than those identified in the statute, namely criticism, comment news, reporting, teaching, scholarship and research. 

The determination of whether secondary use of a copyrighted work constitutes a fair use turns on several factors, including the purpose of the use, the nature of the copyrighted work, the amount of the portion used in relation to the copyrighted work and the effect of the use upon the potential market for the value of the copyrighted work.  The Court noted that the transformative nature of the work was the heart of the fair use inquiry and held that Prince had presented an entirely different aesthetic from Cariou’s original photographs. 

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