Issues in “Fair Use” ― Four Factors Collapsing into One

Dan Brooks’ essay titled “Appropriation Art: Creating by Taking” on the current state of the fair use defense to copyright infringement actions ― especially as it relates to the appropriation of artists’ works ― has been published in “The Routledge Companion to Copyright and Creativity in the 21st Century.”

The publisher’s abstract of Dan’s article is here:

The tradition of appropriating objects or artworks created by others is widespread and reflects an important strand in art history. When the appropriated element incorporated into a new work is an artwork also protected by the copyright laws, rather than a commonplace object, the copyright owner’s rights and the appropriator’s fair use defense to copyright infringement are implicated, placing limitations on the artist’s right to create a new work by taking from another artist. The transformative use standard for fair use determines whether the use has substantially altered the original work, or merely copied it. This standard has come to dominate other fair use factors. This essay argues that the transformative use standard has become problematic when applied to appropriation art as the determination of fair use falls to the subjective views of judges, and erodes the exclusive rights of copyright owners to create derivative works. Creativity will be maximized if the legality of appropriation art focused not just on whether the original work was transformed, but more on the purpose and character of the appropriation, the nature of the copyrighted work and the amount it had been copied, thereby restoring meaning to all four fair use factors.

The book can be found here.

Leave a Reply

Your email address will not be published. Required fields are marked *