Should Artist Intent Matter In Determining Fair Use?

from the no,-but-it-does dept

Fri, Jul 24th 2009 4:30am — Mike Masnick

Peter Friedman has an interesting post wondering why artist intent plays into the determination of what is "fair use." While a judge has pretty wide latitude in determining fair use, there are the famous four factors that a judge must weigh -- but none really have anything to do with the artist's intent. As Friedman notes, what's odd is that based on this fact, it seems that a work may be considered fair use or not solely because of what an artist said his or her intent with the work was. That doesn't make much sense if you think about it logically. Since the point of copyright law is to cover the work itself (remember that whole separation of the idea from the expression thing?), a fair use determination should be based entirely on the work, and never on the intention of the artist. So why don't judges follow that?

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Filed Under: artist intent, copyright, fair use

15 Comments

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Anonymous Coward, 24 Jul 2009 @ 5:32am

When you come up with a way to measure intent, let me know.
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hegemon13, 24 Jul 2009 @ 5:56am

It's all in the philosophy...
This actually makes more sense than you might expect. Not precedent, that is, but the reasons behind it. There are lots of philosophies of literature, and whether the artist's intent matters is part of those philosophies. Some say yes, that the artists intent is the underlying "truth" of a work. That is, the only "correct" interpretation is what the author intended. For those who follow this philosophy, authorial intent is absolutely an inherent part of the work.

What is strange is that we live in an age that has mostly rejected that notion. The prevailing philosophy of most critics/scholars is that authorial intent has no value, and that the reader is the ultimate authority in interpreting a work. The work should be able to stand on its own without the author's support. Or at least that's the way it was when I took my literary critical theory courses about 6 years ago. Therefore, I am quite surprised to see authorial intent popping up in copyright law as a deciding factor on fair use.

Where was this precedent set? It is clearly not written into the law, so where did this first show up as a test for fair use? Maybe that could go a long way toward explaining why it used today.
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Vagabond, 24 Jul 2009 @ 6:19am

Re: Interesting notion
Copyright is a special form of monopoly granted by the government for a certain period of time - supposedly in order to promote creativity.

The law was NOT intended to help the author. It is intended to help OTHERS by forcing them to come up with their own ideas and not blatantly copy someone else's ideas.

In that light, the author's intent should not weigh in AT ALL on fair use. Their opinion, vision or emotion tied with their "creation" is irrelevant.

The whole idea that it's THEIR idea is repulsive anyway. There is NOTHING new, that has not been influenced by something else. In other words, EVERYTHING is a derivative work.

We see that especially with music and art. That's why art and music can be classified into genres.
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Anonymous Coward, 24 Jul 2009 @ 7:16am

A question: are labels even doing anything anymore, or are they just sitting and collecting money? I can't remember the last time I've ever looked at the record label name on any CD I've bought. I care about the artist and his/her/their music. I really couldn't care less what label they signed on with. If these artists were to release albums independently, I would still buy them, especially since they'd probably be a lot cheaper. The record label business model is indeed dead, and it just needs to go away. The internet now allows artists to market themselves to the masses with relative ease.
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Whitt, 24 Jul 2009 @ 7:21am

Intent
Doesn't the first of the four factors ("the purpose and character of the use") involve analysis of intent? For example, in parody, a critical method long considered fair use, the intent of the use is inseparable from the purpose and character of the use.
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Steve R. (profile), 24 Jul 2009 @ 7:53am

Intent is Subjective and Time Sensitive,
Person A comes up to a "new" way to use some content. The artist screams it wasn't my intent for the content to be ripped-off in that manner. Artist now demands $$$$ to sooth their bruised ego.
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Whitt, 24 Jul 2009 @ 7:59am

Re: Intent
Okay, the intent of the artist in the original work is what's in question, not the intent of the artist concerning the derivative work. My bad.
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LostSailor (profile), 24 Jul 2009 @ 9:08am

Only Intent?
...it seems that a work may be considered fair use or not solely because of what an artist said his or her intent with the work was.

The intent of the artist should certainly be considered (as it goes to determining the "purpose" of the use), but it should never be a sole determining factor. The artist may have intended to use another's content to a purposeful end, but it is generally up to the court to decide whether the artist was successful.

About the only way I can see artist's intent as being dispositive is if all other parts of the four-factor test are perfectly in balance.

In other words, artist intent should be considered, but only as one factor among many others.

Wow. I guess I generally agree with Mike!
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ASH, 24 Jul 2009 @ 9:52am

This is one of those forest-for-the-trees situations in which people get so enmeshed in the details that they lose track of the big picture.

The reason that artist intent plays a role here is that copyright, at its most basic and fundamental level, protects the expression of an idea--and if you don't intend to express an idea, you don't get a copyright, regardless of the specific ins-and-outs of fair use, etc.
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Anonymous Coward, 24 Jul 2009 @ 11:10am

Re:
The artist intent would be easy to determine - did they put it in the public domain, a copyleft, creative commons, or share / share style licensing? Did they sign away more of the rights to a third party that paid for those rights?

The artist intent isn't alway simple to define, but absence of positive actions towards some sort of public domain style release, the assumption has to be one of copyright and licensing, not open public use.
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Anonymous Coward, 24 Jul 2009 @ 12:31pm

Re:
When you come up with a way to measure intent, let me know.

That's been around for a very long time. It's a written document know as a "license".
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Anonymous Coward, 24 Jul 2009 @ 12:36pm

Should Artist Intent Matter In Determining Fair Use?
No.

Next question...
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Anonymous Coward, 24 Jul 2009 @ 1:57pm

I'm confused.

So, the intent of the author is okay when it is source code and the author picks a license ... but it's NOT okay when it's art?
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Anonymous Coward, 24 Jul 2009 @ 2:23pm

Re: Re:
Exactly, no license, the material is copyright and therefore is not for sharing. Not hard, is it?
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Anonymous Coward, 24 Jul 2009 @ 2:34pm

Judges
...fair use determination should be based entirely on the work, and never on the intention of the artist. So why don't judges follow that?

Judges follow what they're supposed to follow: political correctness (although it's *not* politically correct to admit it).
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