by Mike Masnick
Fri, Jul 24th 2009 4:30am
Peter Friedman has an interesting post wondering why artist intent plays into the determination of what is "fair use." While a judge has pretty wide latitude in determining fair use, there are the famous four factors that a judge must weigh -- but none really have anything to do with the artist's intent. As Friedman notes, what's odd is that based on this fact, it seems that a work may be considered fair use or not solely because of what an artist said his or her intent with the work was. That doesn't make much sense if you think about it logically. Since the point of copyright law is to cover the work itself (remember that whole separation of the idea from the expression thing?), a fair use determination should be based entirely on the work, and never on the intention of the artist. So why don't judges follow that?
If you liked this post, you may also be interested in...
- Despite Lack Of Evidence It Will Help, Australia Still Planning To Bring In Data Retention, Still Not Clear If It Could Be Used Against Copyright Infringement
- As Blurred Lines Trial Starts, Take A Listen To The Special 'Copyright Only' Remix That Jurors Will Hear
- Viacom Issues Bogus DMCA Over Fair Use Daily Show Remix... After Promising Not To Do That Any More
- Sanctioned Revenge Porner Craig Brittain Says That Google Is Nothing But Copyright Infringement
- Techdirt Podcast Episode 13: Fair Use Protects Culture From Copyright, Not The Other Way Around