RLI 285  3 RESEARCH LIBRARY ISSUES: A REPORT FROM ARL, CNI, AND SPARC 2015 Fair Use Rising: Full-Text Access and Repurposing in Recent Case Law Brandon Butler, Practitioner-in-Residence, American University Washington College of Law I t has been a very good year and a half for fair use. In case after case, from earnings calls about watches to appropriation art about Rastafarians, courts drew a clear line allowing broad and free re-use of copyrighted works for a variety of socially beneficial purposes. Indeed, one trend across all but one of these cases is the broad redistribution of unaltered, full-text documents for new purposes. When a user has a new and socially beneficial purpose that is different from the author’s original purpose in creating and publishing the work, courts call such uses “transformative,” and give them broad leeway under the fair use doctrine. For obvious reasons, research libraries may be better positioned than almost any other institutions to take advantage of this salutary embrace of re-purposing full-text works. This article describes six fair use decisions handed down in the last 18 months with powerful implications for research libraries’ fair use rights.1 The Second Circuit’s decision in Cariou v. Prince2 provides an example of fair use that is transformative without being critical. The case involved appropriation artist Richard Prince and his use of photographs of Rastafarians taken by Patrick Cariou. In his own work, Prince altered Cariou’s work in a variety of ways, including dramatically enlarging the images, cutting and pasting pieces of the photos into collages, and painting over the images. Prince gave coy, ambivalent descriptions of his purposes in re-using Cariou’s work, including expressly disclaiming any intention of commenting on or criticizing Cariou or his work.3 The district court ruled for Cariou, saying Prince’s use was not fair because he had no intent to criticize Cariou. The appeals court disagreed, saying the key question was whether Prince’s appropriations served new aesthetic purposes and would be received differently by their intended audience. Because Prince’s paintings created a radically different impression on the viewer than Cariou’s original photos,4 and served different audiences,5 the appeals court ruled that Prince’s uses were fair. In Swatch v. Bloomberg LP,6 the Second Circuit court of appeals held that it was fair use for news organization Bloomberg to post the entirety of a recorded Swatch earnings call online as part of its news coverage of the company. Remarkably, the court’s initial opinion found that the use was fair use despite being “non-transformative and commercial,”7 but it issued an amended opinion months later removing that description and adding a new section arguing instead that the use was “arguably transformative” because of its novel purposes.8 Specifically, the court argued that Bloomberg had published the call to a different audience (its subscribers, as distinct from Swatch shareholders) and for a different purpose (to portray objectively the content of the call, rather than to persuade or justify the company’s actions). These new purposes, together with the strong public interest in public availability of financial information, led the court to find Bloomberg’s use fair. Novel purposes also led to a finding of fair use in White v. West Publishing Corp., where a commercial database service copied and made available the full text of legal briefs to facilitate research.9 White, an attorney, sued West and Lexis, alleging that their practice of ingesting appellate briefs into their legal