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Fact in the World: The Referential Model of Fair Use

Journal of the Copyright Society of the USA, Forthcoming

68 Pages Posted: 20 Apr 2011  

Christopher Ross McElwain

affiliation not provided to SSRN

Date Written: April 19, 2011

Abstract

The principle of fair use in American copyright law has seen a shift over the last 50 years from a doctrine delineating the outer limits of non-infringing referential use of copyrighted material to a catch-all affirmative defense to prima facie copyright infringement. This has invited confusion over both the scope and the justifications of fair use. This article examines the history of fair use, argues that the original justifications for the doctrine are still relevant and categorizes the various flavors that "referential use" takes today.

Keywords: Fair Use, Copyright, Idea Expression Dichotomy, Sampling, Remix, Air Pirates, Jeff Koons, Shepherd Fairey, Girl Talk

JEL Classification: O34, K11

Suggested Citation

McElwain, Christopher Ross, Fact in the World: The Referential Model of Fair Use (April 19, 2011). Journal of the Copyright Society of the USA, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1815290

Christopher McElwain (Contact Author)

affiliation not provided to SSRN ( email )

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