A Social Utility Conception of Fair Use
59 Pages Posted: 9 Nov 2022 Last revised: 15 Mar 2023
Date Written: October 21, 2022
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: Suggested Citation