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Article
Distilling the Witches' Brew of Fair Use in Copyright Law
University of Miami Law Review (1988)
  • Jay Dratler, University of Akron School of Law
Abstract
This Article attempts to distill the witches' brew once again and produce a clearer solution to the problem of fair use. Section II of this Article identifies the five exclusive statutory rights enjoyed by copyright holders and discusses limitations on those rights, including the dichotomy between idea and expression and the fair use doctrine. In them examines the nature and purposes of the fair use doctrine and its underlying policies and reviews treatments of those policies in the lower courts and legal commentary. Finally, Section II explores the codification of fair use in Section 107 of the Copyright Act of 1976 and Congress' purpose in codifying the doctrine. Section III analyzes the impact of the Supreme Court's opinions in Sony and Nation Enterprises on the fair use doctrine. Section IV attempts to put some of the Court's more sweeping statements in these opinions in proper statutory perspective, particularly certain ‘presumptions' developed by the Court. Section V then proposes a coherent framework for fair use analysis based on the purpose, intent, and logic of each of the four statutory factors and their treatment in decisions of the lower courts. It continues by examining two nonstatutory factors that the courts have identified, and it ends with a reevaluation of the Sony and Nation Enterprises decisions. Finally, Section VI concludes by offering a prognosis for the future of fair use.
Disciplines
Publication Date
1988
Citation Information
Jay Dratler, Distilling the Witches' Brew of Fair Use in Copyright Law, 43 University of Miami Law Review 233 (1988).