Fair use is an affirmative defense to a claim of copyright infringement. See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 547 n.21 (2023) (“[F]air use is an affirmative defense, and [the proponent] bears the burden to justify its taking. . . .”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994); see also Authors Guild v. Google, Inc., 804 F.3d 202, 213 (2d Cir. 2015) [hereinafter “Google Books”]; Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 107 (2d Cir. 1998) (“Since fair use is an affirmative defense to a claim of infringement, the burden of proof is on its proponent.”). 

Under 17 U.S.C. § 107, four factos are considered regarding the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright: 

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The Second Circuit recently addressed fair use in connection with a website at “www.ai-ap.com” that copied a photograph of a Russian woman in a domestic environment with one snake wrapped around her left hand, while another snake crawls up her torso. Romanova v. Amilus Inc., No. 23-828, __ F.4th __ (2d Cir. May 23, 2025). The district court had concluded that the website's publication of the photograph communicated a message that differed from what was originally intended for image when it was published in National Geographic, was “to showcase persons in [Plaintiff's] home country of Russia that kept snakes as pets, specifically to capture pet snakes in common environments that are more associated with mainstream domesticated animals.” In contrast, the district court found that a different message had been communicated by the website about “the ever-increasing amount of pet photography circulating online.”  

The Second Circuit held that the district court had misunderstood the test for transformativeness.

The test turns on whether the copying of the original communicates a message that differs from the message of the original – not whether the copier separately declares such a message. . . . Neither Campbell nor Warhol (nor any other precedential opinion discussing transformativeness) stated or implied that a copying would be deemed transformative, favoring a finding of fair use, merely because the copier, separate from the act of copying, asserted a fact about the original not asserted by it. . . . . Notwithstanding what Defendant said about Plaintiff's image, its unauthorized copying and distribution of the image communicated no message other than what the original image communicated. It did nothing to further the goals of copyright. In Justice Story's words, it merely “supersede[d] the objects” of the original creation. Folsom, 9 F. Cas. at 348. 

     The second flaw in the district court's reasoning was its failure to heed Campbell's insistence, later reiterated in Warhol, that there must be justification for copying, which, but for the finding of fair use, would likely infringe the exclusive rights of the rights holder. As reviewed above, justification is often found when the copying serves to critique, or otherwise comment on, the original, or its author, but can also be found in other circumstances, such as when the copying provides useful information about the original, or on other subjects, usually in circumstances where the copying does not make the expressive content of the original available to the public.  

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     Little would remain of an author's copyright protection if others could secure the right to copy and distribute a work simply by asserting some fact about the copied work. 

Thus, the Second Circuit further noted that "[n]ot only did the Defendant copier flunk the tests of transformativeness of the copying and of need to show justification for the copying, but its copying was done for a commercial purpose, which, while not dispositive, is more helpful to Plaintiff than to Defendant."