Fair Use Is In the Statute, Not the Statue

Why? Because then all a judge has to do is ask the artist what they intended to “do” (or accomplish, which is pretty much what the first fair use factor asks) with the appropriated work. Under Gaylord, both the photographer, John Alli, and the US Post Office would (assuming they weren’t tempted to lie under oath) tell the truth and explain that their purpose in using an image of the Korean War Veteran’s Memorial was to commemorate the Memorial, which, in my humble fair use opinion, would NOT make it fair use. Why? Because people buying this stamp for .37 cents would be buying it because it depicted the Memorial and not because it depicted some generic-looking sculptures with snow on them or, better yet, because the stamp depicted snow.

Anyway, as I stated in my earlier post concerning Calvin & Hobbes, fair use analysis could have been made much easier. Instead, we are now left with a fair use clusterfuck.

UPDATE: May 16, 2013

Donn replies.

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