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Fair Use In The Digital Age: The Ongoing Influence of Campbell v. Acuff-Rose’s “Transformative Use Test”

William H. Gates Hall

All Day Event

This two-day copyright conference will revisit Campbell v. Acuff-Rose (the “Pretty Woman” case) and evaluate its ongoing impact on contemporary legal debates around fair use. In the twenty years since the decision, Campbell has emerged as among the most important copyright cases to date, with a footprint that is both broad and deep. The Copyright Act gives a four-part test for determining fair use, and courts should consider all factors. But as a consequence of Campbell’s influential reasoning, many courts and commentators focus almost exclusively on the first factor, the nature of the use by the defendant, and whether the allegedly infringing work is “transformative.” This significant shift away from attention to the other factors, especially a plaintiff’s market harm under the fourth factor, has been, for some, a cause for alarm, and for others, a cause for celebration. Campbell’s influence extends well beyond the subject matter of the works at issue: a rap parody of Roy Orbison’s classic song. A broad range of artistic works, educational or informational practices, and digital technologies have been found to be “transformative” under Campbell and thus non-infringing. This conference will explore the implications and appropriate applications of the transformative use test in a world that is increasingly digital, and thus potentially full of transformative uses.

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