CONSIDERING THE ROLE OF FAIRNESS IN COPYRIGHT FAIR USE.

Moral intuitions regarding when it is "fair" to engage in unauthorized copying or derivation from a copyrighted work may often take into account factors that the fair use statute, 17 U.S.C. § 107, does not enumerate among fair use considerations. This project examines one extralegal factor that may weigh in a moral equation: a contrast in relative status between the copyright owner of the underlying work and the accused infringer. Is it more or less "fair" for a teen to sell unauthorized fanfiction based on their favorite movie or for a movie studio to turn a kid's fiction into a blockbuster movie without permission? A number of scholars have observed that copyright law has the potential to promote social justice or, conversely, to establish or reinforce stubborn social, racial, or economic hierarchies. The fair use doctrine provides an example of this duality: it can allow less privileged speakers to "talk back" to dominant culture, to find voices and audiences, and to forge paths to success; it can also allow more privileged speakers to engage in cultural appropriation and exploitation with impunity. The differences between these scenarios may have more to do with who is on which side of the fair use coin than with any of the doctrinally prescribed fair use factors. This thought experiment considers whether and how the fair use doctrine might better promote progress if it took considerations, such as party resources and cultural market share, into account. [ABSTRACT FROM AUTHOR]