Casey Sandalow, ‘I Did You a Favor by Taking Your Work: Reconsidering the Harm Based Approach to the Fourth Fair Use Factor’

ABSTRACT
American copyright law is predominantly utilitarian. Fair use – designed to promote copyright’s utilitarian goals – has emerged as one of the most nebulous doctrines in American law. This is partially by design; Passing the Copyright Act of 1976, (the ‘Act’) Congress sought to endorse ‘the purpose and general scope of the judicial doctrine of fair use’, but made clear that ‘there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change’. This judicial deference – combined with the case by case nature of fair use determinations – has led to evolving and inconsistent applications of §107.

Interpretation of §107(4), which instructs courts to consider ‘the effect of the use upon the potential market for or value of the copyrighted work’, is illustrative. Though a plain reading of §107(4) leaves room for consideration of all market effects, most courts and commentators agree that the inquiry into this factor concerns only deleterious effects on the copyright owner’s actual or potential markets. Some have expressed hostility toward consideration of positive market effects on the ground that an infringing use that might improve sales of a copyrighted work is also likely to invade the market for derivative works …

Sandalow, Casey, I Did You a Favor by Taking Your Work: Reconsidering the Harm Based Approach to the Fourth Fair Use Factor (April 24, 2022). Columbia Journal of Law and the Arts, forthcoming.

(Visited 22 times, 1 visits today)

Leave a Reply