community and perform the copyrighted work, and create derivative works based on the work at the exclusion of others. Those exclusive rights are tempered, however, by the primary defense to copyright infringement: the doctrine of fair use. Fair use is a limited ability to use a copyrighted work by exercising one or more of the copyright owner’s exclusive rights without having permission from or compensation to the owner. As codified in the Copyright Act, courts determine whether a particular use is fair by examining four factors: (1) purpose and character of use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, and (4) effect of the use upon the potential market or value of the copyrighted work. While each of the factors is examined for fair use, many courts and legal scholars herald the first factor, the purpose and character of use, as the most important.
(Re)Defining Copyright Fair Use
The inquiry into the purpose and character of use has been defined purely through academia and case law. In 1990, after years of struggling with a vague test for fair use, then-District Court Judge Pierre N. Leval authored an essay entitled “Toward a Fair Use Standard” to present what would eventually become the foundation for the transformation requirement of fair use. In essence, Leval argued that use of a copyrighted work must employ the work in a different manner or for a different purpose than the original to be considered fair. Leval claimed that unauthorized use of copyrighted materials should only be allowed when it adds value to the original work.
– By Denis Yanishevskiy –
Old World, New Order In ways the legal world is still struggling to comprehend, the Internet has and continues to play an influential role in defining modern and future copyright law. While quite ubiquitous today for casual users, the ability to instantaneously publish and forever preserve intellectual property online has deep ramifications for copyright authorship, ownership, and rights. When the copyright system was formed, such technological capabilities only existed in works of fiction, and typical uses and misuses of copyrighted works were expected.
Leval’s efforts to emphasize what he believed to be the heart of the fair use inquiry certainly influenced the Supreme Court. In the seminal case on the issue, Campbell v. Acuff-Rose Music, Inc., transformative use became the official legal standard for determining the purpose and character of fair use. If the hope was to clarify the fair use inquiry, however, Campbell has, in hindsight, only raised new questions. In the time since Campbell, the transformative use inquiry has become the heart of the fair use test, with recent cases treating it almost as a determinative fifth factor.
Today, however, courts are tasked with using that same legal framework to draw lines between permitted and infringing uses of works when technological innovation changes the question before the ink dries. In fact, the very nature of “use” is constantly being redefined in a culture fueled by reimagining, combined with the ability to make that a reality. So, what are courts to do in deciding what use constitutes an infringement of copyright and what use is considered fair?
The Artist Formerly Known As Transformative In September 2014, the artist Richard Prince was recognized with an installation in the Gagosian Gallery in New York. Prince is primarily known for projects altering others’ photographs. Most famously in 2013, Prince’s changes to a collection of photographs of Rastafarians in Jamaica taken by Patrick Cariou escalated into a copyright infringement case, Cariou v. Prince, taken up by the Second Circuit. However, the court decided that Prince’s alterations were sufficiently transformative so as to constitute fair use. In broad terms, the court decided that fair
What’s Fair is Fair (Use) The essence of copyright law hinges on a copyright owner’s exclusive rights under the Copyright Act. Generally, a copyright holder has the right to reproduce, distribute, publicly display
theWRITS
28