Social Semiotics in the Fair Use Analysis
57 Pages Posted: 10 Nov 2010 Last revised: 22 Sep 2011
Date Written: November 9, 2010
This article presents an argument for an expansion of fair use, based not on theories of authorship or rights of autonomy but rather on a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this matter for the purpose of a fair use analysis based on a claim of transformativeness?
Section I of the article sets the doctrinal groundwork for an exploration of social semiotic theory in the fair use inquiry by exploring a few of the more relevant points of controversy in that analysis, including: commerciality, transformativeness, and cognizable market harm. Section II of the article focuses on transformativeness, a concept at the heart of the first factor inquiry into the purpose and character of a defendant’s use of the copyrighted work. After exploring the prevailing conception of transformativeness, I propose an alternative – grounded in social semiotic theory – in which social value is manifest in the process of meaning-making that occurs as individuals and interpretive communities engage the work. It is in this process of semiosis that copyright’s commitment to the enrichment of society can be best evaluated as a distinct question apart from the creation of new authorial rights. Finally, the pending case of Shepard Fairey v. The Associated Press is used to illustrate how social semiotic theories are applied. Section III of the article looks at how social semiotic theory might be relevant in an analysis of the remaining fair use factors: the nature of the copyrighted work; the amount and substantiality used; and the effect on actual and potential markets. The article concludes that social semiotics is most helpful in terms of the second factor, the nature of the copyrighted work, with only limited application to the remaining factors.
Keywords: Transformative, Transformative Use, Transformativeness, Obama Poster, Hope Poster, Associated Press, AP, Cuff-Rose, Campbell, Pierre Leval, Judge Leval, Copyright, Fair Use, Social Semiotics, Shepard Fairey, Campbell v. Acuff-Rose, IP, Intellectual Property, Authorship, Author Effect
JEL Classification: O34
Suggested Citation: Suggested Citation