Should Artist Intent Matter In Determining Fair Use?
from the no,-but-it-does dept
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
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Re:
That's been around for a very long time. It's a written document know as a "license".
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Re: Re:
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It's all in the philosophy...
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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Re: Interesting notion
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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Intent
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Re: Intent
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Intent is Subjective and Time Sensitive,
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Only Intent?
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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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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Re:
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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Should Artist Intent Matter In Determining Fair Use?
Next question...
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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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Judges
Judges follow what they're supposed to follow: political correctness (although it's *not* politically correct to admit it).
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