Culture and Fair Use

Abstract

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use. Cultural adaptations—the transforming of preexisting works to reflect the cultural and social mores and norms of a different group—would appear on first glance to be prohibited as derivative works, which, under the Copyright Act, can be created exclusively by the copyright owners of the original works. A culture-centered approach to fair use, however, offers the possibility of permitting at least certain cultural adaptations. While this question would be one of first impression for courts, cultural adaptation can—and should—be understood to constitute fair use. Cultural adaptations comment on and transform the original work by recontextualizing it for a different cultural market. In addition, permitting cultural adaptations advances the goal of copyright and the public policy goal of diversity by fostering the creation of more works, and especially more works for and by minority artists.