Essay – Fair Use Factor Four Revisited: Valuing the ‘Value of the Copyrighted Work’

Abstract

Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of “the value of the copyrighted work” identifies independent kinds of harm, and entails considerations distinct from market substitution. Those harms include the undermining of business models in which the “value of” the copied work may be its utility as a “draw” for goods or services other than the copied work. Relevant considerations also concern creators’ economic and moral interests in being recognized as the authors of the copied works. This Essay explores the basis for and consequences of according autonomous value to the inquiry into the impact of the use upon the “value of the copyrighted work.”

Keywords: fair use, copyright, copyright law, intellectual property