About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most