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Let's say that there's a work B, which under U.S. law seems to count clearly as a transformative use (parody, satire or the like) of another work A, and thus subject to fair use. So what about a work C that is a (licensed) derivative work of B? Would it also need to count as a transformative use of A for it to be fair use?

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The analysis is always with respect to the work that the owner is claiming infringement of. Work C would be compared to work A.

The copyright owner would have to prove copying happened (even via an intermediary, like work B). The copyright owner would also have to prove that work C included a substantial taking of the original work in A.

The owner of work C could raise a fair use defense, and work C would be subject to the 4-factor fair use test in relation to work A.

  • So the fact that B falls under fair use, and C has licensed B, provides no safe harbor against claims by A against C. – feetwet Feb 28 '16 at 18:39
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    @feetwet That is correct. However the creator of work C could file a motion for summary judgement requiring A's copyright owner to at least argue how a fair use analysis of C would materially differ from the fair use analysis of B. Basically, the argument used for B would probably work for C (depending on purpose of use, etc.), which would greatly simplify/shorten the litigation. I can imagine a situation where the purpose of work C is different from the purpose of work B in a way that tips the fair use analysis against C. – user3851 Feb 28 '16 at 18:42
  • Actually I'm pretty sure C would count as a parody of A (since C is a crossover of B and another, original, work by B's author, and the main transformative value of B are its characters), but I wanted to try and cover all the bases. – thoron Feb 28 '16 at 21:22

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