Washington Journal of Law, Technology & Arts


Aaron B. Wicker


In Kienitz v. Sconnie Nation LLC, the U.S. Court of Appeals for the Seventh Circuit ultimately rejected the concept of transformative use having a central role within the doctrine of fair use. In doing so, the Seventh Circuit broke with judicial precedent, namely the Supreme Court’s holding in Campbell v. Acuff-Rose Music, Inc., where the Court unanimously held that the inquiry for the first factor of fair use is whether, and to what extent, the work is transformative. The Seventh Circuit’s 2014 decision raises questions about the scope of the holding in Campbell and about whether this holding extends to cases outside of the realm of parody. This Article will examine the scope of Campbell and whether there can still be market-centered fair use post-Campbell. This Article will then consider the implications of a market-centered fair use analysis. Finally, this Article will conclude that courts should continue to utilize the transformative use inquiry for the purposes of fair use, that Congress need not intervene in fair use, and that there cannot be market-centered fair use post-Campbell.

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