Re: Paper on Fair Use

On Fri, 23 Jul 1999, Rod McCarvel <rod[_at_]seanet.com> wrote:
>
> I have posted on my web site an article I wrote while in law school
> three years ago. The title is "Every Artist is a Cannibal: The
> Strange Saga of the Letter U and the Numeral 2". I would welcome
> any comments anyone may have. Remember -- it's from a long,
> long time ago.
>
> http://www.seanet.com/~rod/cannibal.html

Great example and good analysis! You highlight well a gut issue: HOW TO MOOT THE TENSION BETWEEN COPYRIGHT AND FREEDOM OF EXPRESSION BY PROCEDURALLY AND REMEDIALLY RESTRUCTURING INFRINGEMENT SUITS? It's one way to take some pressure off the overused fair-use defense.

_See_ Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988); Mark Lemley & Eugene Volokh, _Freedom of Speech and Injunctions in Intellectual Property Cases_, 48 DUKE L.J. 147 (1998); me, _Hiroshige vs. Van Gogh: Resolving the Dilemma of Copyright Scope in Remedying Infringement_, 46 J. COPR. SOC'Y USA 39 (1998), shorter version at <http://www-rcf.usc.edu/~pgeller/dilemma.htm>.

I'd question your analysis on a fine but, for me, critical point: Is it the same thing to "make artistic judgments," as Justice Holmes would prohibit, and to appreciate the extent of transformation in a given use? In one finding, the court would be evaluating aesthetic worth in some absolute sense; in the other, relative aesthetic novelty -- albeit, I'd argue, only as a partial defense to some remedies ...

     Paul Geller
     <pgeller[_at_]law.usc.edu>