And while the phrase is thrown around a lot, it’s of course a legal standard that can get fairly complicated. But Columbia Law professor Timothy Wu provides a primer for how to think about fair use in an article for Slate.
- Fair use comes into play when you are using something in a way that would normally be copyright infringement, but the way you are using it is justified.
- Justifiable purposes include parodies, use in news reporting and resizing images for search engines.
- Wu describes the commonality of these categories by saying fair use “aids secondary creativity” and, to explain further, cites an appeals court quote: “The use must be of a character that serves the copyright objective of stimulating productive thought and public instruction.”
- Fair use law, like nearly all law, develops through specific case decisions that result in new categories.
- Sometimes it comes down to a gut feeling – does the use of the work justify infringing its copyright?
Wu does not make the call as to whether Fairey’s use of the AP Obama picture is fair use (the court will weight the freedom to produce such art against the argument he used too much of the original, Wu says), but instead he wanted to help “frame the question.”
A ruling on the case could create a new category — the “Warholization” of pictures, as Wu describes the relevant Obama art.
Wu not making the call highlights, in a way, the complexity of fair use cases. Like pornography, you think you know fair use when you see it, but you then have to hope your feelings match up with the caselaw.
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