Fair use analyses are overly vague and abstract. While the Copyright Act established four factors for courts to consider when determining if an alleged infringer’s use of copyrighted work is “fair”, these factors are not susceptible to easy interpretation. More importantly, once these factors have been interpreted, a trier of fact is instructed to balance these factors against each other. No effective method currently exists in guiding courts as to how to balance inherently disparate factors against each other, either in terms of intensity of the factors or how one factor might balance against another totally different factor. This article proposes a framework that would allow courts to interpret each of the four factors and then assign a grade of 1-4 for each factor. After each factor is graded, the values are inserted into the framework, which then performs the balancing and reaches a conclusion on fair use. Having an objective basis for reaching a fair use determination helps to eliminate result-oriented decisions and provides a firm ground of support for a court’s decision.
Restoring the Balancing Test: A Better Approach to Fair Use in Copyright,
Chi. -Kent J. Intell. Prop.
Available at: http://scholarship.kentlaw.iit.edu/ckjip/vol14/iss1/4