Surveying Recent Scholarship on Fair Use: A Conversation

Peter Decherney:

Fair use is a constantly evolving legal doctrine, and since Judge Pierre Leval introduced the concept of transformative use in 1990, the doctrine has undergone a tectonic shift.¹ Courts, scholars, and increasingly creators and consumers measure fair use by the extent to which a new work has been transformed: Has the context changed significantly? Does the new work repurpose the material it uses? Courts have consistently endorsed the transformative-use standard, finding that recontextualizing a work can make it a fair use even when the entire original work is used and it is used for a commercial purpose.² For the most part, the concept of transformative use has brought a new clarity and, I would suggest, an increased predictability to fair use. At the same time, however, many other technological, cultural, and political factors have also exerted an infl uence over fair use.

A new wave of books takes account of the post-1990 landscape of fair use and its impact on culture, business, and creativity. Kembrew McLeod and Peter DiCola's Creative License examines the mounting restrictions courts have placed on music sampling and the resulting transformation of hip-hop music.³ Patricia Aufderheide and Peter Jaszi's Reclaiming Fair Use chronicles and situates the movement they started to create fair-use best-practices documents.⁴ William Patry's How to Fix Copyright argues that fair use is an important engine for innovation and job creation that should be adopted beyond the United States.⁵ Jason Mazzone's Copyfraud and Other Abuses of Intellectual Property Law details copyright holders' adeptness at claiming rights far in excess of those given to them by the law.⁶ And my own Hollywood's Copyright Wars argues that the Internet has homogenized fair-use communities that were once treated as distinct groups.⁷ Significantly, these are works by both media scholars and legal scholars, who are often collaborating on the same texts. Other projects, like the Organization for Transformative Works and its journal, also bring together lawyers and media scholars to think about fair use and its impact on culture. What do you think these books (and others) tell us about the changing character of fair use? And what are the implications for scholars, archivists, and media makers?

Jessica Silbey:

A common feature of three of the books you mention—Creative License, Reclaiming Fair Use, and How to Fix Copyright—is that they begin from the ground up in making the case for the centrality of fair use in cultural production today. Patry calls for an "evidence-based approach to lawmaking."⁸ Aufderheide and Jaszi's book is an example of creating norms from within maker and user communities to establish expectations for sound practice. McLeod and DiCola's book is a rich account of hip-hop music, based on hundreds of interviews with actors in the field, explaining how the music got made, when it began, and how it shifted in response to transformations in the law and corporate practice. Each of these books is a readable balance of detailed stories and overarching principles for positive change in creative practices. There is a growing problem with the misfit between intellectual property (IP) law that claims to promote creativity and innovation and the way it works for those doing the making and disseminating. These books are a welcome addition to the conversation insofar as they examine the actual mechanisms and processes of cultural production.

Rebecca Tushnet:

I agree that these books are varied and useful contributions to the literature. I'll start with Aufderheide and Jaszi, whose book most actively attempts to create norms. They contend that fair use should be, and descriptively is, readily capable of being applied by ordinary citizens to rework and reframe existing copyrighted material without fear. Thus, Larry Lessig's famous claim that fair use is "the right to hire a lawyer" is overstated to the detriment of fair use.⁹ The common "copyfight" language of rebellion and suppression can be dangerous to the potential fair uses of the many people who don't want to be rebels or pirates...