Fair Use Across Time

Abstract

This article proposes that, as a copyright work ages, the scope of fair use, at least as to derivative works and uses, should expand. This is because the market for a copyrighted work has a temporal dimension; the copyrighted work has a market of a fixed number of years. For example, in considering the fourth element of section 107 fair use, courts have discussed two kinds of situations in which the market for the plaintiff's work can be adversely affected: (a) situations where this particular defendant's action adversely affected the plaintiff's market, and (b) situations where the defendant's action, if it became widespread, would adversely affect the plaintiff's market. But in the second situation, when the alleged infringement occurs becomes important. The later the alleged infringement occurs in the copyright term, the less widespread the practice could become - when the market for the work is understood as a market across time. Further supports for the idea that fair use should become broader in the last period of the copyright term comes from the basic investment structure of copyrighted works.

Keywords: Copyright, Fair Use, Intellectual Property, Film, Music, Entertainment Law, Authorship