Re: Campbell v. Acuff-Rose

On Mon, 14 Mar 1994, Andrew Beckerman-Rodau wrote:
>
> Justice Souter seems to be borrowing from antitrust law by espousing a
> "substitution" analysis with regard to whether an alleged parody is a
> fair use or copyright infringement.

It's not an antitrust analysis as much as an application of Justice Story's formulation in _Folsom v. Marsh_. In antitrust law, you look to substitutes to determine the scope of the applicable product market allegedly threatened with monopolization or being monopolized. Justice Story thought a use might not be fair use if it could substitute for the original, but that uses that were transformative in nature were more likely to be fair uses.

Seth Greenstein
<sethg[_at_]access.digex.net> Received on Tue Mar 15 1994 - 13:52:58 GMT