You’ll Know It When You See It: Fair Use After Cariou

In the wake of a 2012 ruling broadening the scope of copyright law’s fair use defense, lawyers, artists and dealers face more uncertainty as to what kind of copying is legal. The Second Circuit’s decision in Cariou v. Prince has led to a new sense of unease, the exposure of a growing generation gap in the art business, and a dramatic reversal of the roles of artists and judges in evaluating works of art. This article examines the origin of the transformative use defense to copyright, its recent reformation, and its impact on both subsequent copyright rulings and the business of art.