Herrick Intellectual Property Group Chair Barry Werbin reports on the Seventh Circuit's recent decision expressly rejecting application of the transformative use test in assessing copyright fair use. Despite the Supreme Court's mention of transformative use in Campbell v. Acuff Rose Music and the Second Circuit's widely publicized and critiqued application of the doctrine in the Prince v. Cariou case, the Seventh Circuit refused to address transformative use because it is not one of the statutory factors for assessing fair use and can undermine a copyright owner's exclusive right to make derivative works.
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