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[90WashLRev0615] Market Effects Bearing on Fair Use

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dc.contributor.author Fromer, Jeanne C.
dc.date.accessioned 2015-07-06T17:07:22Z
dc.date.available 2015-07-06T17:07:22Z
dc.date.issued 2015-06
dc.identifier.citation 90 Wash. L. Rev. 615 (2015) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1459
dc.description Volume 90, Number 2, June 2015 en_US
dc.description.abstract Jeanne C. Fromer, Professor of Law, New York University School of Law; Co-Director, Engelberg Center on Innovation Law & Policy. Abstract: Copyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use. Whether an otherwise infringing work is a fair use is determined by courts weighing at least four factors, one of which is the effect of the otherwise infringing work on the market for the copyrighted work. The Supreme Court’s decision just over twenty years ago in Campbell v. Acuff-Rose Music, Inc. opened the door to a laudable analytical framework for the bearing of market effects on fair use. First, Campbell supports a more full-bodied investigation of the market effects—both harms and benefits—of defendants’ works on plaintiffs’ copyrighted works. Courts can eliminate conclusory reasoning by appreciating that both market harms and benefits can matter in assessing fair use. In so doing, courts avoid weighing only the mere possibility that a licensing market does or could exist for a copyrighted work as a reflection of market harm and ignoring the possibility that a use of a copyrighted work might confer benefits on the copyright holder. Second, Campbell implied two important ways to divide relevant from irrelevant market effects. One ought to exclude market effects from consideration if they are empirically unlikely or if there are effects unrelated to the protectable aspects of the copyrighted work, such as its ideas or the societal value attributed to the work. This analytical framework for market effects bearing on fair use advances copyright’s goal of promoting the creation of artistic and cultural works from which society can benefit. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Article en_US
dc.subject Symposium: Campbell at 21 en_US
dc.title [90WashLRev0615] Market Effects Bearing on Fair Use en_US
dc.title.alternative Market Effects Bearing on Fair Use en_US
dc.type Article en_US
dc.rights.holder Copyright 2015 by Washington Law Review Association. en_US

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