'Fairest of them All' and Other Fairy Tales of Fair Use

Abstract

"Once upon a time, in a happy land, courts decided which usage constituted fair use in copyright cases, and justice prevailed throughout the realm. Then the Royal Council ('Congress') imported something from beyond the sea called 'codification.' Henceforward, the Council proclaimed, the law-books would spell out if usage were fair or unfair in four pellucid factors. The Wisest Men of the Kingdom ('Supreme Court') declared that the result in any given case would depend on all four of the factors. The Copyright Specialists ('Second Circuit') added, '[b]ecause this is not a mechanical determination, a party need not 'shut-out' her opponent on the four factor tally to prevail,' to which Soothsayers embroidered that if nonetheless 'she does so, victory on the fair use playing field is assured.' But these are only fairy tales."