Intent in Fair Use

Abstract

This Article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. Courts and scholars have largely sided with the former view but have failed to explain fully why this should be the case or whether there might be countervailing benefits to considering evidence of subjective intent. Crucially overlooked is the possibility that taking the user’s perspective into account would serve copyright’s utilitarian structure by stimulating socially beneficial uses that would not otherwise occur. In addition, formal recognition of the role intent plays in fair use would bring needed transparency to judicial practices in this area. This Article first develops a framework for evaluating the degree to which courts, parties, and scholars have deemed a user’s conscious compliance with fair use principles relevant to the fair use analysis. It then argues for a limited role for evidence of subjective intent, proposing criteria for when such evidence should, and should not, be weighed in the fair use calculus.

Keywords: Copyright, Fair Use, Intent, Authorship, Appropriation Art, Best Practices, Literary Theory