Article by Anna Volkov
The Fifth Circuit's decision deviated from prior fair use analyses because it disproved that a finding of non-transformative secondary use typically results in a higher likelihood of market harm for the copyright owner's original work. Instead, it suggested that non-transformative activity is protected absent commercial gain or substantial adverse impact on the potential market for the work. It also declined to reprimand good faith secondary uses that result in irrational redundant claims from frivolous plaintiffs. Part II of this Note introduces the fair use doctrine, explores how courts employ a four-factor test to analyze fair use, and focuses specifically on the first and fourth factors. Part III examines the Fifth Circuit's application of relevant case law in its fair use analysis. Part IV discusses how the court disregarded transformative use and instead prioritized commercial gain and market impact throughout its analysis. Part V briefly concludes.
About the Author
Anna Volkov, J.D. Candidate 2024, Tulane University Law School; B.A. 2017, Rhodes College. I would like to thank the Tulane Law Review members for their assistance and insight throughout writing and publication. This Case Note is dedicated to my family and friends for their unwavering support during my time in New Orleans.
Citation
97 Tul. L. Rev. 643