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Website: http://more.read.fm/more_read

Bio: wants lyrics to teach language

Fair use for the 21st century: if it adds value, it's fair; if it substitutes, it's not

January 17, 2008 9:56am

Does current legal interpretation of Fair Use exclude commercial testing of transformative use in any conceivable potential market? snip from since revised wikipedia Fair Use:

Another important Fair Use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. As we indicated previously, depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work. For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all of the elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a Fair Use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. ( Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

If I get this right, then current legal precedent says copyright owners may claim ownership to any transformative use, even if they haven't even imagined, considered, or worked hard to deliver it? Any value we prove to add to their property, no matter the sweat on our brow, arguably violates their property rights? If so, practically speaking today, why bother trying to "add value"?

Is there any legal precedent where transformative Fair Use is judged to add commercial value (ie indentifying, developing, testing, proving and opening a previously unconsidered but valuable new market, employing a clearly transformative new use), to Copyrights?

is this talk of "adding value" supported, at all, by current law?

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