In our previous blog article, we explored the concept of fair use and how courts determine whether the use of copyrighted material is permitted without the rightsholder's permission under the Constitution's statute. One way to decide whether the fair use law applies is to determine whether the third party engaged in the transformative use of the copyrighted material. New York's active Second Circuit Court recently ruled on two applicable cases, elucidating the intricacies of fair use.
While the framers of the Constitution had no way of predicting the kinds of technology we enjoy today, they did have the foresight to understand the necessity of intellectual property rights. That is why the Constitution gives artists and inventors an exclusive right to their work under Article I, Section 8, Clause 8:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
If you thought that US Supreme Court justices lacked romantic proclivities, you're wrong! Some months ago, in a conversation between the justices about a very important copyright issue involving fashion, Justice Stephen Breyer stated, "The clothes on the hanger do nothing. The clothes on the woman do everything." Justice Elena Kagan immediately interjected with, "That's so romantic!" Romantic or not, the justices were determining whether or not a feature of a useful article is protectable under Section 101 of the Copyright Act.