Post by Molly Schwartz, Associate Fellow, R Street Institute
Is it legal for me to publish a blog post with this title? Am I violating copyright law? I am, after all, reusing lyrics from the chorus of a popular Beatles song. The recognizability and cultural resonance of the lyrics is exactly what makes it an appealing title for me to use.
Jessica Vosgerchian is a 3L at Harvard Law School and a Copyright Fellow for the Harvard Office for Scholarly Communication. She has worked on copyright issues in the public and private sectors.
Last September, the Court of Appeals for the Seventh Circuit diverged from the judicial trend of treating “transformative use” as the most important element in the test to determine whether a defendant’s use of another’s work was fair, and so not infringement under the Copyright Act. In Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014) (Kienitz II), the Court affirmed the lower court’s holding that the defendants’ manipulation of a photo for a t-shirt design constituted fair use but employed a different interpretation of the fair use test.