A memetic theory of creativity focuses on the replicating units of culture—memes—as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator’s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity.

Because the memetic account of creativity differs in explanation, so too does it differ in policy recommendations. This is where the memetic account of creativity most explicitly diverges from the theories of some contemporary scholars. The idea that replicators play a role in cultural creation suggests, among other things, that copyright’s originality requirement should be heightened; and that the derivate right should be loosened; and that moral rights should be discarded or substantially revised.

Despite the Court’s navigational guidance, the parodic sea still whirls with judicial uncertainty: noticeably absent from the Court’s decision and subsequent lower court decisions are methods for determining what can “reasonably be perceived” or who reasonably perceives the work. No one has systematically examined how lower courts have applied the “reasonably perceived” test, or how courts have used a finding of parody to inform their fair use analyses. This Article examines these issues and suggests that the Supreme Court failed to adequately articulate the foundational elements of this test, causing lower courts to apply the test in variety of ways. Paradoxically, however, this analysis shows that, after finding a parody existed, courts have been fairly uniform in their fair-use factor analyses.

If the first part of this Article reveals a stormy and poorly charted judicial sea, the second part proposes a new course by articulating a new reasonable perception test and modifying the subsequent fair use analysis. This test is built by deconstructing the current framework for analyzing a parody and then framing it in terms of reasonable perception. This also removes any factor-based analysis for parodic works. Deconstructing and then reconstructing the inquiry this way allows courts to apply the parody doctrine with greater accuracy and consistency. It also anchors the parody inquiry, keeping the judicial ship close to parody’s doctrinal dock.

Despite the Court’s navigational guidance, the parodic sea still whirls with judicial uncertainty: noticeably absent from the Court’s decision and subsequent lower court decisions are methods for determining what can “reasonably be perceived” or who reasonably perceives the work. No one has systematically examined how lower courts have applied the “reasonably perceived” test, or how courts have used a finding of parody to inform their fair use analyses. This Article examines these issues and suggests that the Supreme Court failed to adequately articulate the foundational elements of this test, causing lower courts to apply the test in variety of ways. Paradoxically, however, this analysis shows that, after finding a parody existed, courts have been fairly uniform in their fair-use factor analyses.

If the first part of this Article reveals a stormy and poorly charted judicial sea, the second part proposes a new course by articulating a new reasonable perception test and modifying the subsequent fair use analysis. This test is built by deconstructing the current framework for analyzing a parody and then framing it in terms of reasonable perception. This also removes any factor-based analysis for parodic works. Deconstructing and then reconstructing the inquiry this way allows courts to apply the parody doctrine with greater accuracy and consistency. It also anchors the parody inquiry, keeping the judicial ship close to parody’s doctrinal dock.

Before reaching the issues that arise in court, however, this Article lays the groundwork for that discussion, exploring how religious motivations align or conflict with the underlying theories of copyright law. This exploration starts with an explanation of three theories, or justifications, of copyright law. After explicating these theories, they are compared to the religious motivations for seeking copyright. This analysis reveals that religious motivations for pursuing copyright protection conflict with each of these theories’, and thus copyright law’s, underlying principles.

Once this groundwork has been laid, the doctrinal questions presented by religious uses of copyright law are analyzed. This analysis focuses on whether various copyright doctrines, such as the merger doctrine and fair use, aid or inhibit the objectives of religious groups seeking copyright protection. After describing and analyzing various copyright doctrines vis-à-vis religious motivations, this Article concludes that copyright law cannot wholly achieve the aims of religious organizations that use copyright law. In sum, the two primary motivations religious organizations have for seeking copyright conflict with copyright law’s underlying purposes and its substantive doctrines. This clash illustrates that religious organizations should not use copyright law to achieve their religious objectives.

To remedy these problems, this Article proposes a new model for evaluating educational fair use: the administrative agency. Although previous scholars have delineated new approaches to copyright infringement and fair use, almost none deal explicitly with fair use in education. That is exactly what this Article does. Building off a previous scholar’s suggestion that Congress create an agency to administer fair use, this Article takes an additional step by creating a model that develops and enforces regulations specific to educational fair use. This new agency is likely to reduce uncertainty for educators, slenderize educators’ risk of litigation—thereby simultaneously decreasing educational expenses and increasing the amount of time and money spent on educational advancement—and substantially ameliorate, if not eliminate, the negative effects the Guidelines have had on the education. Educational institutions would then have the flexibility and the practical tools they need to teach their instructors and students about the law.

This note first articulates the Supreme Court’s decision in Grutter v. Bollinger¬. Next, the note outlines the details of the Seattle case. Finally, the note applies the strict scrutiny framework outlined in Grutter to the Seattle case, and asks whether this application is prudent as a matter of law (i.e., constitutional) and policy. This note also deals with whether the Grutter rationale should apply to K-12 education generally. Ultimately, this note concludes that the Grutter rationale does not apply either to the Seattle case or K-12 primary education school-assignment plans generally.