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46 AIPLA Q. J. 293 (2018)
Ambiguous Commercial Nature of Use in Fair Use Analysis

handle is hein.journals/aiplaqj46 and id is 309 raw text is: AIPLA QUARTERLY JOURNAL Volume 46, Number 3 Page 293 Summer 2018 AMBIGUOUS COMMERCIAL NATURE OF USE IN FAIR USE ANALYSIS Igor Slabykh* I. INTRODUCTION.......................................................295 II. COMMERCIAL NATURE OF USE AS A SUB-FACTOR IN FAIR USE ANALYSIS .........................................................................298 III. DOES ONE REALLY NEED TO DEFINE COMMERCIAL NATURE?..............300 A. TRANSFORMATIVE USE DOCTRINE AND COMMERCIALITY ..............300 B. COMMERCIALITY AS A MATTER OF DEGREE...........................309 IV. THE PLAIN MEANING OF COMMERCIAL NATURE....................310 V. THE SUPREME COURT ABOUT COMMERCIAL NATURE OF USE...................313 VI. COMMERCIAL NATURE OF USE IN CASE LAW AND SCHOLARLY WORKS .........................................................................316 A. COMMERCIAL NATURE AS NOT PAYING CUSTOMARY PRICE..317 B. COMMERCIAL NATURE AS COMMERCIAL GAIN.......................320 C. COMMERCIAL NATURE IN OPPOSITION TO NONCOMMERCIAL NATURE . ........................................ ............323 D. COMMERCIAL NATURE AS MARKET SUBSTITUTION/MARKET HARM.......................................................324 E. COMMERCIAL NATURE AS COMMERCIAL STATUS OF A USER .328 F. COMMERCIAL NATURE AS OPPOSED TO ARTISTIC/CREATIVE ...... ... ................................................................331 G. COMMERCIAL NATURE AS RELATED TO COMMERCIAL SPEECH ...... ... ................................................................332 H. COMMERCIAL NATURE AS NON-PRIVATE/PERSONAL COPYING.334 * @ 2018 Igor Slabykh. The author practiced copyright law in Russia and the Commonwealth of Independent States for more than ten years. In 2017, he earned the LLM degree from the George Washington University Law School. The author would like to thank Steven M. Tepp and Robert Brauneis for their help and answering author's endless questions about US copyright law. The author also would like to thank Susan Karamanian for opening to the author the world of US legal system. It should be stressed that this article cannot occur without great help from AIPLA Quarterly Journal editors and the author would specifically like to thank Alexia Khella, Kelly E. Elder, Nan Hu, and Palak Sharma.

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