Brief Thoughts on Fair Use and Third-Party Harm: Another Reappraisal of Patrick Cariou v. Richard Prince

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The critical literature on copyright law’s fair use rule is enormous, with much of the recent spilling of ink bemoaning the overuse of transformativeness as a decisive factor in the case law. Many courts now consider whether a secondary user has added value to a work by including new insights or new aesthetics to be critical in resolving fair use disputes, even if the amount taken from the original is extensive. An unfortunate impact of that judicial trend has been to overshadow the importance of other factors that should be taken into account, but often are not. One of the ignored issues is the negative impact that users’ actions may have on third parties who are not directly involved in an intellectual property disagreement. This brief Article tackles this oversight, first by providing a short overview of a segment of fair use law and second by reviewing a judicial example that vividly displays the problem and strongly suggests a need for the reconfiguration of fair use doctrine.


67 UCLA L. REV. DISC. 104 (2019)