The Impact of Substantial Compliance with Copyright Exceptions on Fair Use
27 Pages Posted: 30 Nov 2011 Last revised: 28 Dec 2015
Date Written: November 30, 2011
Courts should consider a defendant's substantial compliance with a specific exception in Title 17 when applying the fair use privilege. As the court assesses the first fair use factor, the purpose and character of the use, the court should give great weight to the defendant’s substantial compliance with the exception. The court should recognize that Congress determined that uses of similar purpose and character did not constitute infringement. While such recognition should not be dispositive of the fair use analysis, it should certainly weigh significantly in the defendant’s favor, particularly the closer the defendant’s conduct is to the specific exception. In short, the specific exception should exercise a powerful gravitational pull on the fair use analysis in cases where the defendant substantially complied with the exception's requirements.
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