Toward a New Fair Use Standard: Attributive Use and the Closing of Copyright's Crediting Gap

76 Pages Posted: 30 Jan 2023

See all articles by John Tehranian

John Tehranian

Southwestern Law School; University of California, Los Angeles (UCLA) - School of Law

Date Written: June 19, 2022

Abstract

A generation ago, Judge Pierre Leval published Toward a Fair Use Standard and forever changed copyright law. Leval advocated for the primacy of an implicit, but previously under-appreciated, factor in the fair use calculus—transformative use. Courts quickly heeded this call, rendering the impact of Leval’s article nothing short of seismic. But for all of its merits, Leval’s article failed to acknowledge or consider the salience of another largely under-recognized and heretofore unnamed factor: attributive use.

Toward a New Fair Use Standard attempts to address this oversight, particularly when viewed in light of the current law of crediting in the twenty years since Dastar v. Twentieth Century Fox, the Supreme Court’s decision to permanently foreclose the most common method by which creatives had previously vindicated their crediting interests—the Lanham Act’s prohibition on false designations of origin. After assessing the recent body of empirical work highlighting both the quantitative and qualitative importance of attribution to authors and the value of crediting to consumers, investors and the broader public, the Article scrutinizes the current state of attribution rights to argue that, post-Dastar, the remaining legal mechanisms for securing crediting, including private contracting, have proven insufficient.

To address this gap in the law, this Article considers, but rejects, recommendations to overturn Dastar or enact an independent general attribution right under the Copyright Act. Instead, I propose a more modest solution that needs no congressional action. Like transformative use, attribution promotes progress in the arts by motivating and incentivizing authorial production. Moreover, as a careful exegesis of the relevant case law demonstrates, issues of crediting have long shaped the contours of the fair-use defense. As such, I advocate for the formal adoption of attributive use as an express consideration in the fair use calculus. The Article therefore builds on Leval’s influential work and calls for the formulation of a new fair use standard that more closely calibrates the defense with the utilitarian goals of our copyright regime.

Suggested Citation

Tehranian, John, Toward a New Fair Use Standard: Attributive Use and the Closing of Copyright's Crediting Gap (June 19, 2022). Southern California Law Review, Vol. 96, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=4012361

John Tehranian (Contact Author)

Southwestern Law School ( email )

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University of California, Los Angeles (UCLA) - School of Law ( email )

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