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7 Comm. L. & Pol'y 1 (2002)

handle is hein.journals/comulp7 and id is 1 raw text is: COMMUNICATION LAW AND POLICY Volume 7 Winter 2002 Number 1 Copyright © 2002 Lawrence Erlbaum Associates, Inc. ERODING FAIR USE: THE TRANSFORMATIVE USE DOCTRINE AFTER CAMPBELL MATTHEW D. BUNKER* Fair use doctrine in copyright law is undergoing a subtle and insidious shift. Fair use, which began life as a judge-made defense to copyright infringement, is now one of the most important statutory limits on the monopoly power of copyright owners to control the dissemination of their works. After the United States Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc., fair use analysis in lower courts has become increasingly monistic, focusing to a great degree on whether the use in question was transformative. This article discusses the history of fair use and explores how lower courts are interpreting the Campbell decision to require transformation, a strategy that tends to overprotect copyright owners at the expense of the free flow of information. Fair use doctrine in copyright law is undergoing a subtle and insid- ious transformation. Fair use, which began life as a judge-made de- fense to copyright infringement, is now codified in the 1976 Copyright Act as one of the most important limits on the monopoly of copyright owners over the use of their copyrighted expression.1 The fair use defense is seen as an equitable rule of reason, and includes a number of statutory factors that allow courts to balance the interests of the copyright owner against those of the putative fair user. The major justification for the fair use doctrine is to prevent authors from exercising absolute control over their creations, and to leave some *Reese Phifer Professor of Journalism, University of Alabama. 117 U.S.C. § 107 (1994).

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