A Social Utility Conception of Fair Use

59 Pages Posted: 9 Nov 2022 Last revised: 15 Mar 2023

See all articles by Daniel J. Gervais

Daniel J. Gervais

Vanderbilt University - Law School

Date Written: October 21, 2022

Abstract

This article seeks to bring back the ship of fair use into the waters of social utility, which it was never intended to depart. The talismanic use of “transformativeness” in fair use caselaw can result in a misapprehension of that test proposed by Judge Pierre Leval in 1990. The Supreme Court went back to social utility in Google v Oracle, though not explicitly. The Article offers both a clear explanation of the role of social utility in fair use and its relation to transformativeness, one the one hand, and a path for courts, including the Supreme Court in Warhol, to apply the test constructively, on the other hand.

Keywords: tranformativeness, fair use, purpose and character, Leval, appropriation art, Warhol

JEL Classification: K00, K11

Suggested Citation

Gervais, Daniel J., A Social Utility Conception of Fair Use (October 21, 2022). Vanderbilt Law Research Paper No. 22-35, Available at SSRN: https://ssrn.com/abstract=4255162 or http://dx.doi.org/10.2139/ssrn.4255162

Daniel J. Gervais (Contact Author)

Vanderbilt University - Law School ( email )

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