New piece: Judges as Bad Reviewers

Judges as Bad Reviewers: Fair Use and Epistemological Humility, 25 Law & Lit. 20–32 (2013)

Abstract:

The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a good fair use analysis.

Unfortunately, copyright fair use cases rarely acknowledge multiplicity of meaning. Through discussion of fan-made music videos, this short commentary shows how transformative uses routinely invite multiple interpretations, just as ‘‘original’’ works do. As a result, a fair use analysis that insists on reducing works to single meanings will predictably fail in the aim of protecting transformative works that add new meanings or messages. The proper approach is epistemological humility: when reasonable audience members could discern commentary on the original work, a court should find transformation, even when other reasonable audience members could disagree.