A Social Utility Conception of Fair Use

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