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Harvard Journal of Law & Technology




Fair use is perhaps the most contested doctrine in all of copyright law. New technologies that not only enable increased audience engagement with cultural works, but also facilitate the use of these "raw materials" to produce new works have made fair use more controversial. At another level, these technologies have made visible an audience, not of passive content consumers, but of active participants in discourse around and about those works.

This Article presents an argument for an expansion of fair use based on social semiotic theory, rather than on theories of authorship or rights of autonomy of subsequent authors. Instead, it employs 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 independent of the creator's intent. If so, does it matter for the purpose of a fair use analysis based on a claim of transformativeness?

Part II sets the doctrinal groundwork for an exploration of social semiotic theory in the fair use inquiry. It focuses on transformativeness, a concept at the heart of the fair use analysis of the purpose and character of a defendant's use of a copyrighted work. Transformative-ness recognizes the value of new works created using protected works as raw material, where those subsequent works constitute new expression, meaning, or message, and accommodates these works within the limitations of existing expressive monopolies.

Part III explores the prevailing conception of transformativeness and proposes an alternative conception. In practice, the transformativeness inquiry focuses on whether the defendant engaged in authorial purpose or activity. This focus on authorship, rather than the resulting work, emphasizes monopoly rights-based incentives to create new works at the expense of accommodating new works that use protected works as raw materials. This imbalance in the equilibrium between monopoly incentive and accommodation means that the full social benefit of additional expression is not realized. Social semiotics offers an alternate conception of transformativeness in which social value is manifest in the process of meaning-making that occurs as individuals and interpretive communities engage the work. Copyright's commitment to the enrichment of society can be best evaluated in the context of this process of semiosis as a distinct question apart from the creation of new authorial rights. Finally, the case of Fairey v. Associated Press is used to illustrate how social semiotic theories are applied.

Part IV looks at how social semiotic theory might be relevant in an analysis of the remaining fair use factors: the nature of the copyrighted work, the amount and substantiality used, and the effect on actual and potential markets. This Article concludes that social semiotics is most helpful in terms of the nature of the copyrighted work, with only limited application to the remaining factors. Part V concludes.

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Harvard Law School

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