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?
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