Fair Use Is In the Statute, Not the Statue

My good friend, Donn Zaretsky, disagrees with my earlier post concerning Calvin & Hobbes that when it comes to fair use we had it better pre-Cariou disaster. He cites an argument he made in 2009 after the Gaylord Korean War Veterans Memorial trial decision (and pre-appellate decision).

Korean War Veterans Memorial, Washington, D.C. Sculpture designed and copyright owned by Frank Gaylord.

I agree with Donn that fair use can go both ways, but the reason for that is not grounded in the statute; it’s grounded in the fact that judges hastily make fair use opinions based on emotive instincts rather than a rational and reasonable approach to the four fair use factors (which is exactly what happened recently with the Second Circuit catastrophe).

(If you’re wondering what I mean by “emotive instinct,” it’s when judges are eagerly seduced by images and, not wanting to come across as Paleolithic philistines, make a fair use analysis based on the “look” rather than the legal application.)

Thus, a judge’s willy-nilly application of the fair use factors doesn’t mean that fair use (especially pre-Cariou) allows for its unreliable ambiguity. In fact, I believe that fair use could have been clarified in a way that would actually help artists had Judge Batts’ decision — concerning the need to hear an artist’s purpose and intent — been upheld.

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