A Pattern-Oriented Approach to Fair Use

166 Pages Posted: 9 Oct 2003 Last revised: 18 May 2009

See all articles by Michael J. Madison

Michael J. Madison

University of Pittsburgh - School of Law


More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "case-by-case" application of the statutory fair use "factors" to the defendant's use of the copyrighted work in question. A more explicit acknowledgement of the role of these patterns in fair use analysis is consistent with fair use and copyright policy and tradition. Importantly, it helps to bridge the often-difficult conceptual gap between fair use claims asserted by individual defendants and the social implications of accepting or rejecting those claims. Finally, a pattern-oriented approach is normatively appropriate, when viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. In the longer term, it should enhance the ability of copyright law to promote creative expression.

Keywords: copyright, fair use, file sharing

JEL Classification: K10, K11

Suggested Citation

Madison, Michael J., A Pattern-Oriented Approach to Fair Use. William & Mary Law Review, 2004, Available at SSRN: https://ssrn.com/abstract=442441 or http://dx.doi.org/10.2139/ssrn.442441

Michael J. Madison (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-7855 (Phone)
412-648-2648 (Fax)

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