Social Semiotics in the Fair Use Analysis

H Brian Holland, Texas Wesleyan School of Law

Abstract

Social Semiotics in the Fair Use Analysis

34,314 words (including 380 footnotes)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this matter for the purpose of a fair use analysis based on a claim of transformativeness?

Introduction

I. Background

A. Section 107 and the Fair Use Factors Analysis

B. Situating Transformativeness in the Fair Use Analysis

II. Social Semiotics and Transformativeness

A. Prevailing Conceptions of Transformativeness

1. Expressive Purposes and the Assertion of Authorial Presence

2. Imbalances Between Incentive and Accommodation

B. An Alternate Conception of Transformativeness

1. Meaning as Social Value

2. Transformativeness as a Social Semiotic Process

3. Example: Shepard Fairey v. The Associated Press

III. Social Semiotics and the Remaining Fair Use Factors

A. Nature of the Copyright Work

B. The Amount and Substantiality Used

C. Effect on Actual and Potential Markets

Conclusion