Private Law Theory

Cathay YN Smith, ‘Political Fair Use’, 62 William and Mary Law Review 2003 (2021). According to conventional wisdom, fair use factor two plays a minor role, if any, in copyright cases. But, as Cathay Smith shows in ‘Political Fair Use’, this factor plays a major role – and may even be dispositive – in cases involving ‘political uses’ of copyright-protected works. Through a series of case studies, Smith ‘identifies a pattern in political fair use decisions: in disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under section 107 of the Copyright Act’. Fair use is a fact-intensive, case-by-case inquiry … (more)

[Sarah Burstein, JOTWELL, 18 January]

First posted 2022-01-21 11:00:54