Fair Use As Resistance

Abstract

Making fair use of copyrighted material can, itself, be a form of resistance, upending traditional hierarchies and disrupting the creator/consumer dichotomy that copyright law otherwise presumes. Using the theoretical framework of Mikhail Bakhtin, one may frame the doctrine of fair use as enabling the “carnivalesque,” in which free expression facilitates interaction among disparate groups, eccentric behavior is permitted, participants are considered equal in a way that defies socioeconomic and political expectations, and transgressive or subversive behavior can occur without punishment. Fair use is a right, permitting all to resist the dominance of exclusive rights-holders, and marginalized groups often employ fair use practices to “talk back” to dominant culture and to establish communities of belonging that strengthen their identities and senses of self. However, framing fair use practices as carnivalesque also reveals underlying hierarchies implicit in copyright law. Indeed, discourse surrounding fair use often relies on hierarchical notions of authenticity and power, and fair use jurisprudence often reflects hierarchical assumptions regarding the corporate/personal divide and regarding race, class, and gender. This Article explores the theoretical and discursive implications of framing fair use as a mechanism for resistance.

Keywords: Copyright, Fair Use, Literary Theory, Bakhtin, Carnivalesque, Intellectual Property