The Impact of Specific Exceptions on Fair Use: An Update

Abstract

In 2012, I published a law review article where I argued that when a defendant engages in the type of activity permitted by a specific exception under the Copyright Act, but does not qualify for a technical reason, the court should give weight to the defendant’s substantial compliance with the exception when considering the first fair use factor (the purpose and character of the use). In adopting a specific exception, Congress recognized the strong public policy interest in permitting the use in cases meeting the exception’s requirements. Significantly, the same public policy interest still exists in cases where many, but not all, of the exceptions’ requirements are met. While the existence of a specific exception should not be dispositive of the fair use analysis, I argued that it should have a positive influence on the first fair use factor. Since then, both the Second Circuit and the Register of Copyrights have given substantial weight to specific exceptions in the context of consideration of the first fair use factor.