Abstract:
The future of fair use depends on whether judges act like bad reviewers, orwhether they behave differently in interpreting challenged works than they doin almost every other aspect of judging. Ordinarily, judges are asked toproduce definitive answers about the meanings of texts. But when it comes to literaryjudgments, the bad reviewer is the one who insists that a work has only onemeaning, and announces the bottom line as if it were an absolute. A goodreviewer explains the sources of her judgment, making room for otherinterpretations. This is also what is necessary to a good fair use analysis.
Unfortunately, copyright fair use cases rarely acknowledge multiplicity ofmeaning. Through discussion of fan-made music videos, this short commentaryshows how transformative uses routinely invite multiple interpretations, justas ‘‘original’’ works do. As a result, a fair use analysis that insists onreducing works to single meanings will predictably fail in the aim ofprotecting transformative works that add new meanings or messages. The properapproach is epistemological humility: when reasonable audience members coulddiscern commentary on the original work, a court should find transformation,even when other reasonable audience members could disagree.
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