Copyright Fair Use Research Articles

Understanding the MetaBirkin: Trademark Law and an Appropriate Legal Standard for NFTs

This note argues that the recently decided trademark case, Hermès v. Rothschild, highlighted the flaws of the Polaroid factors and their singular focus on determining consumer confusion, and makes a case for an expanded understanding of a copyright fair use defense in trademark law. Two forms of fair use are already acknowledged in the trademark context, but neither are comparable to the much stronger fair use exception in copyright law. The factors in the copyright fair use defense seem to strike directly at the heart of the most salient concerns in Hermes v. Rothschild, while the Polaroid factors seem to allow only tangential considerations of certain key factors.

The Law and Economic Analysis on the Fourth Factor of the American Copyright Fair Use Doctrine: Based on the Assumption that the Copyright Originator and Its User Are in the Same Market

The Law and Economic Analysis on the Fourth Factor of the American Copyright Fair Use Doctrine: Based on the Assumption that the Copyright Originator and Its User Are in the Same Market

Reconceiving Argument Schemes as Descriptive and Practically Normative

We propose a revised definition of “argument scheme” that focuses on describing argumentative performances and normative assessments that occur within an argumentative context, the social context in which the scheme arises. Our premise-and-conclusion structure identifies the typical instantiation of an argument in the argumentative context, and our critical framework describes a set of normative assessments available to participants in the context, what we call practically normative assessments. We distinguish this practical normativity from the rationally or universally normative assessment that might be imposed from outside the argumentative context. Thus, the practical norms represented in an argument scheme may still be subject to rational critique, and the scheme avoids the is/ought fallacy. We ground our theoretical discussion and observations in an empirical study of US district court opinions resolving legal questions about copyright fair use and the lawyers’ briefs that led to them, instantiating our definition of argument scheme in the “argument for classification by precedent.” Our definition addresses some criticisms the argument-scheme construct has received. For example, using our data, we show that a minimally well formed instance of this type of argument does not shift any conventional burden from the proponent of the argument to its skeptics. We also argue that these argument schemes need not be seen as dialogical.

Generative AI Art: Copyright Infringement and Fair Use

The discussion of AI copyright infringement or fair use often skips over all the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but without considering the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This neglecting of topics and stages of the infringement analysis fails to direct our attention to a properly accused party or entity whose actions prompt the question. Making a sudden transition from a question of infringement in the creation of training datasets to the creation of foundation models that draw from the training data to the actual operation of the generative AI system to produce images makes a false equivalency regarding the processes themselves and the persons responsible for them. The questions ought to shift focus from the persons compiling the training dataset used to train the AI system and the designers and creators of the AI system itself to the end users of the AI system who conceive of and cause the creation of images. The analysis of infringement or fair use in the generative AI context has suffered from widespread misunderstanding concerning the generative AI processes and the control and authorship of the end-user. Claimants, commentators, and regulators have made incorrect assumptions and inaccurate simplifications concerning the process, which I refer to as the Magic File Drawer theory, the Magic Copy Machine theory, and the Magic Box Artist theory. These theories, if they were true, would be much easier to envision and understand than the actual science and technology that goes into the creation and operation of a contemporary visual generative AI system. Throughout this Article, I will attempt to clarify and correct the understanding of the science and technology of the generative AI processes and explain the different roles of the training dataset designers, the generative AI system designers, and the end-users in the rendering of visual works by a generative AI system. Part II will discuss the requirements of a claim of copyright infringement including each step from the copyrightability of the claimant’s work, the doctrines that limit copyrightability, the requirement of an act of copying, and the infringement elements. Part III will summarize the copyright fair use test paying particular attention to the purpose and character of the use analysis, 17 U.S.C. § 107(1), and the current interpretation of the “transformative” test after Andy Warhol Foundation v. Goldsmith, particularly in circumstances relating to technology and the use of copyrighted or copyrightable data sources. Part IV will analyze potential infringement or fair use by the creators of generative AI training datasets. Part V will analyze potential infringement or fair use by the creators of visual generative AI systems. Part VI will analyze potential infringement or fair use by the end-users of visual generative AI systems. For all their complexity, visual generative AI systems are tools that depend on an end-user who conceives of and designs the image and provides the system with a prompt to set the generative process in motion. The end-users are responsible for crafting the prompt or series of prompts used, for evaluating the outputs of the generative AI, for adjusting and editing the iterations of images offered by the AI system, and ultimately for selecting and adopting one of the images generated by the AI as the final image. The end-users then make further decisions about the actual use and its function and purpose for the images the end-users selected and adopted from the outputs of the AI. While working with the AI tool to try to produce a certain image, an end-user might steer the system to produce a work that could, under an infringement analysis, be regarded as potentially infringing, which would lead us again to the fair use analysis based on the end-user’s use of the image.

Why Visual Art Requires Its Own Standard Under Copyright Fair Use

Why Visual Art Requires Its Own Standard Under Copyright Fair Use

Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions

This article, published in the May/June 2021 edition of The Federal Lawyer, examines the jurisprudential and legislative history of copyright fair use in relation to its current status in American copyright law as an defense. Fair use as an affirmative defense is relatively ingrained into modern U.S. copyright law, even though the Copyright Act does not use this label. Because fair use is treated as an affirmative defense, defendants wholly bear the burdens of production and persuasion on all four fair-use factors articulated in Section 107 of the Copyright Act. However, this full allocation to the defendant may reflect an imbalance between the rights of copyright holders and the rights of the public. These considerations are especially evident when it comes to summary judgment, which already places the onus on the defendant to eliminate issues of fact, and when it comes to the market harm factor, which requires the defendant to prove the absence of harm to markets that not it, but the plaintiff, owns. The Copyright Act's lack of specificity as to the procedural posture of fair use could support a currently untapped judicial flexibility when it comes to approaching fair use from this standpoint. As this article concludes, a procedural approach that takes into account the parties' relative access to evidence and information could bring copyright protection and copyright exception into better balance, furthering the goal of copyright law to foster creativity.

Copyright law issues in the context of video game Let's Plays and livestreams

Video game content has grown increasingly popular on internet service providers such as YouTube and Twitch. This genre of uploaded material includes the gameplay of internet users, in the form of pre-recorded ‘Let's Play’ videos, as well as livestreamed playthroughs. However, the application of current copyright law principles to these kinds of content is still a grey area. This legal uncertainty can be attributed to the absence of binding judicial precedent on whether video game Let's Plays and livestreams constitute copyright infringement or fair use. More recent legislative provisions intended to update copyright law for current digital technology provide little assistance, as their implementation by internet platforms has perpetuated a practice of favouring the interests of game developers over users who produce Let's Plays and livestreams. This article discusses the problems of applying existing copyright law to video game playthroughs uploaded online, as well as the drawbacks of the automated tools YouTube and Twitch have developed to manage these types of content in their systems. In order to address these issues, suggestions for copyright law reform will be explored. However, in the absence of imminent legislative amendments, I conclude that compulsory licensing arrangements, and making modifications to YouTube's and Twitch's content scanning tools are the most viable means of achieving a better balance between the interests of game developers, the internet platforms, and Let's Play creators and game streamers.

No Comment: Will Prince v. Cariou Alter Copyright Judgess Taste in Art?

Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that it has more to do with his change in legal strategy. In Blanch, Koons finally offered the court what it wanted: an “Art History 101” explanation of his work’s meaning — something he was too arrogant to do in previous cases. And the surprise in the Cariou v. Prince case was not the reversal of the restrictive requirement that fair reuses comment on the originals, but was instead the holding that transformative uses need not comment at all. Prince essentially refused to offer the court an explanation of the meaning of his work. As a result, the Second Circuit was hard-pressed to ascribe a meaning to his work that contrasted with Cariou’s. Instead, the court focused on objective differences between the works (size/color/materials) and a visibly different aesthetic (serene/natural beauty versus crude/jarring/hectic/apocalyptic). Thus, the “newness” that the transformative use test demands can be gleaned by the “reasonable observer” without any reference to the artist’s intentions. As a result, the provocateurs of the art world will not have to dumb-down their art as Koons did in Blanch. Judge Charles Haight in Rogers v. Koons described Koons’s art as “commenting upon the commonplace.” Not only was the judge clearly unimpressed with Koons, but he was also dismissive of appropriation art. In contrast, the Second Circuit in Prince accepts one of the central tenets of this art form: placing common images in new contexts can change the way we think of them. And we do not need the artist to tell us how.

Does Copyright Only Serve the Creative Industries?

This article contains an opinion on the application of copyright in regard to attracting venture financing and public offering of shares. While researchers and practitioners prefer to talk about the value of patents, not enough attention has been devoted to copyright in this context. Copyright applies to the whole world immediately after the publication was made and can be commercialized in any industry, from a financial services holding company to an electric power company. Copyright should be considered an addition to patent protection, as well as an addition to trademark protection. It influences the company's attractiveness. On the other hand, the article describes the mechanism for preventing copyright infringement within the company. A literature review and statistical analysis of the registration of works in the field of copyright were done. For the analysis, the first 50 companies from the list of the world's largest companies by consolidated revenue as of 2018 were selected. The data about copyright activity was obtained through open sources. The methods of descriptive statistics were applied. The considered companies represent different industries, so the overall results cannot be explained with reference to the industry (for example, to the creative industries). From the results, we see that the registration of documents in the field of copyright is a common practice regardless of the company's field of activity. The experience of implementing the registration of copyright of the electric power engineering company is shared. The arguments presented in the article prove the effectiveness of copyright registration regardless of the areas of business. Preventing copyright infringement is an important process from an economic point of view. Copyright fair use management system for internal use was designed. The system includes legal, educational, and specific aspects. Such a system has already proven its effectiveness within the engineering company. The implementation of the developed system in the company made it possible to significantly reduce infringements related to the illegal use of photos and videos in advertising (digital and paper) and on social media. The results of monitoring within the copyright fair use management system are embedded in business processes such as software sales offers.

Deciding Fair Use

An often-overlooked question is who should decide the important questions of the day. This Article takes up the inquiry as it relates to copyright fair use. Conceptually, fair use is a public policy question. The better policy view is that fair use is a statutory right, a speech-protective safeguard, and a defense — but not an affirmative defense. Operationally, who decides fair use is a judicial policy question. Who decides a particular question is informed by the nature of the question. Courts are arbiters of law, and juries are arbiters of facts. For a mixed question of law and fact, who decides is driven by whether the question is more fact-like or more law-like. Categorizing such questions is, at its core, an allocative policy question. The policy answer is driven by the nature of the question, relative institutional skills, and the importance of the interest at stake. Properly seen as an affirmative right, and not an affirmative defense, the interests at stake in fair use cases are a user’s right to free expression balanced against a copyright holder’s statutory privilege. This Article contributes to the scholarly conversations by laying bare the reality that who decides the question of copyright fair use is nakedly political. Courts are actively wrestling with this unresolved policy question. The Seventh Amendment fashions a policy preference for juries to decide questions of fact. Moreover, history confirms a long tradition of relying on juries to make fair use determinations. But it is unclear if this tradition will continue. Without Supreme Court guidance, categorizing fair use as more law-like or more fact-like is so slippery and malleable that the Seventh Amendment ceases to be an influence — much less a command.

4차 산업혁명 시대의 신기술관련 저작권 침해책임과 공정이용 규정에 관한 연구

19세기에 공정이용 법리를 정립했을 당시 기술 수준으로는 필사(筆寫)에 의하여 저작물을 복제하는 방법 외에는 극소수의 특권을 가진 자만이 인쇄술을 보유하여 저작물과 정보를 유통하고 배포할 수 있었지만 4차 산업혁명 시대인 오늘날에는 IT 기술을 기반으로 한 초연결·초지능 등 저작물 이용 기술이 고도로 발전되어 누구나가 쉽고 저렴하게 고품질의 저작물을 복제 및 생산하고 공유할 수 있게 되었다. 이처럼 공정이용 법리가 180년 가까운 세월을 겪어오는 사이에 기술은 혁신적이고 급진적인 변화가 있었다. 비록 공정이용이 추상성이라는 특성 때문에 새로운 기술변화의 풍파 속에서도 여전히 유효한 규정으로서 작동할 수 있다는 장점이 있다고는 하지만, 2차원의 문학작품 논평의 맥락에서 전개된 역사를 고려할 때 IT 기술 기반 위에 4차 산업혁명이라고 명명되는 오늘날의 신기술을 제대로 다룰 수 있는 능력이 있는지를 재고할 필요가 있다.BR 이러한 이유에서 종래의 공정이용이 주로 다루었던 출판, 음악, 영화 등 주요 저작권산업 관련 분쟁과는 달리 신기술이 야기하는 저작권 침해 문제는 특별히 다른 관점에서 접근할 필요가 있어 “기술” 관련 저작권 침해 책임 판단에 다각적·균형적 특화된 새로운 판단지침이 요구되는 것이다. 따라서 인공지능(AI), 빅 데이터(Big Data), 사물인터넷(IoT), 블록체인(Block chain), 3D 프린팅, 드론, 가상현실(VR), 클라우드 컴퓨팅(Cloud Computing) 등 신기술을 적절하게 다루기 위한 대안으로서 종래의 공정이용 규정에서 급변하는 고도화된 오늘날의 기술 현실에 맞추어 그 패러다임의 중심을 ‘저작물’에서 ‘기술’로 옮기고, 제1 및 제4판단요소에 방점을 두어 “기술을 고려한 공정이용”이라는 새로운 판단지침을 제시하였다. 이에 새로운 판단요소로서 해석론적 개념인 “기술을 고려한 공정이용”으로 재구성하였을 때 그 구체적인 판단지침의 내용은 다음과 같다.BR1. ‘기술’ 이용의 목적 및 성격(제1호)BR (1) ‘기술’의 상업적 및 비상업적 이용BR (2) ‘기술’의 변형적·생산적 이용BR (3) ‘기술’의 사회적·공익적 가치 이용BR2. ‘기술’이 이용하는 저작물의 종류 및 용도(제2호)BR3. ‘기술’로 이용된 부분이 저작물 전체에서 차지하는 비중과 그 중요성(제3호)BR4. ‘기술’을 통한 저작물의 이용이 그 저작물 및 ‘기술’의 현재 및 잠재적 시장 가치에 미치는 영향(제4호)BR 이 글은 현재의 공정이용 규정이 기술이 고도화된 4차 산업혁명시대에 타당한지를 살펴보는 것을 목적으로 하고 있기 때문에 저작권 침해 분쟁중에서 “신기술로 기인된 문제 유형”만을 고찰할 것이다. 따라서 이러한 문제의식에서 도출된 “기술을 고려한 공정이용”이라는 새로운 해석론적 개념이 적용되는 범위 또한 “신기술로 기인된 저작권 침해 분쟁 유형”에만 국한되는 것이 타당할 것이다. 이에 기존 공정이용 규정의 하위 판단요소로서 새롭게 개념화한 ‘기술을 고려한 패러다임의 공정이용’은 저작물을 이용하는데 사용되는 도구인 ‘기술’이 공정이용 인정 판단에 핵심사항이 된 유형에 대하여 적절한 지침을 제시하는 것으로 향후 구체적 적용 범위를 한정해야 할 것이다.

Safeguarding Fair Use Through First Amendment’s Asymmetric Constitutional Fact Review

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. DeVito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdict that had found in favor of a defendant’s fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate courts should apply an asymmetric review of fair use determinations as a constitutional fact. And as a constitutional fact, fair use determinations should be reviewed de novo only when the free-speech-claimant does not prevail in the lower court. This is the first work to (1) offer a theoretical justification and limiting principle for constitutional fact review and (2) extend this framework to copyright fair use. The thesis relies on the following three propositions. First, constitutional fact review should be a one-way, asymmetric review, rather than a two-way, symmetric review. De novo review of constitutional facts should only apply when the free-speech-claimant does not prevail in the lower court. The circuit courts of appeals are split on this issue, and for over three decades the Supreme Court has declined to resolve the split. Second, the copyright fair use analysis embeds First Amendment interests. By embedding First Amendment issues within copyright fair use and denying independent First Amendment scrutiny, the Court has de facto constitutionalized the fair use inquiry. Fair use is thus a constitutional fact. And lastly, as a proxy for First Amendment interests, fair use should receive added protections of independent appellate review — like other speech-implicating cases. Specifically, this Article argues copyright fair use determinations should receive asymmetric, independent appellate review of fair use as a constitutional fact. The question of the appropriate standard of appellate review for fair use decisions is underexplored and undertheorized. Other scholars have debated whether independent, constitutional fact review should be applied symmetrically or asymmetrically. Others have recognized that fair use protects core free speech interests. And others have recognized that standards of review in copyright cases matter. But no one has put all of the aforementioned pieces together to propose the heightened procedural protection of constitutional fact review in fair use cases to protect users’ First Amendment interests. This Article fills that gap.

Fair use and fairness in copyright: A distributive justice perspective on users' rights

Australia is once again considering how to best protect the public interest in copyright. One of the most contested current issues in Australian copyright law is the question of limits and exceptions to the rights of copyright owners. The recent Australian Law Reform Commission (‘ALRC’) review into copyright exceptions recommended broadening and simplifying the exceptions to better protect the interests of users to access and reuse copyright material for socially beneficial purposes. Despite the exhaustive consultation and report produced by the ALRC, and the support lent to it by the recent Productivity Commission Inquiry Report, there is little consensus about its recommendations. The proposal to introduce fair use is strongly contested by rightsholder groups, who are reluctant to cede further control over the use of information and cultural goods, particularly given the challenges they have faced transitioning to a digital environment.

Show Me the Copyright: Using Game Techniques to Teach Copyright Law

Teaching copyright law and fair use can be a challenge. The audience’s eyes might glaze over. Even if an audience is attentive, how do you know if the information is being understood? Using game techniques and role playing can give the presenter immediate feedback on if information is being retained, and allow an audience to immediately utilize the taught information. The poster presents fun, engaging strategies used in university workshops for using familiar games to teach copyright law to students and colleagues. Example questions of a Jeopardy! style game and role playing scenarios were included during the poster session

A New Frontier: Incorporating Copyright into Distance Education

Copyright law and fair use have evolved over time to allow educators to use materials in the classroom for face to face instruction. Online instruction has opened up many new possibilities for both students and faculty. However, it has created new areas for copyright infringement to occur, both unintentionally and otherwise. This poster will show how the University of Wisconsin-Parkside Library is making it easier for online instructors to use library resources in their courses. Key components include: instruction on copyright law for new online instructors, online library copyright guide, and our new streaming media policy. This poster will offer some tips on how the library can build copyright into distance and online education programs and make copyright understandable.

Anti-Innovation Norms

Intellectual property (IP) scholars have recently turned their attention to social norms-informal rules that emerge from and are enforced by non-hierarchically organized social forces-as a promising way to spur innovation in communities as diverse as the fashion industry and the open source software movement. The narrative that has emerged celebrates social norms' ability to solve IP's free-rider problem without incurring IP's costs. But this account does not fully consider the dark side of social norms. In fact, certain social norms, when over-enforced, can create substantial barriers to the most socially beneficial creative pursuits. Because IP scholars have left unexplored how social can hinder innovation in this way, the harm they cause has gone unmitigated. This Article sheds light on the dark side of innovation norms. It coins the term norms to label these counterproductive social forces. Using the double lens of sociology and psychology, it gives a full theoretical account of three types of anti-innovation norms: research priority, methodology, and evaluation norms-all of which interfere with socially beneficial boundary-crossing innovation. Our elucidation of anti-innovation has both theoretical and policy implications. On the theory side, it suggests that IP scholars to date have been too focused on addressing the free-rider problem. This has caused them to overlook other barriers to innovation, like those posed by the set of anti-innovation we describe here. This focus on free-riding may also help explain why innovation and scholars have paid little attention to debates within the broader literature on law and social concerned with identifying situations in which social are welfare reducing. On the policy side, it points to innovation dilemmas that IP is not fully equipped to solve. While changes to the IP doctrines of attribution and fair use in copyright and nonobviousness in patent law can counteract anti-innovation at the margin, a comprehensive solution requires innovation scholars to broaden their vision beyond the IP toolkit. We take the first steps in this direction, proposing a number of interventions, including novel funding regimes and tax credits.

Educational Fair Use in Copyright : Court Decision Standards and Implications of Cases in the United States

Educational Fair Use in Copyright : Court Decision Standards and Implications of Cases in the United States

On the case of the missing detail and the twisted truth about hard work

This text, its politics, and erotics originate in ‘the case of the missing detail’: the alliance between Warner Brothers Entertainment Inc. and the author J.K. Rowling during a trial over copyright infringement and fair use concerning a lexicon, which, I argue, puts at stake, as an opportunity, ownership in the properties of the story and world of Harry Potter. During the trial, the author alone takes center stage. In investigating the alliance and making a case for its shared interests, this text brings together work and consumption. I look at the role work and specifically ‘hard work’ by the author plays in criminalizing and containing consumption that is disorderly, disrespectful, and excessive: consumption by fans. Fans who write fan fiction are not content to merely read and consume; they disrespect the symbolic authority of the author to write their own and different stories and create symbolic value in excess of and for the original story. However, in the end, and in this case, at stake in criminalizing and containing consumption by fans are interests that have nothing to do with hard work, but with collecting rent instead, on the license to use the Harry Potter trademark for branding. Consumption that is disorderly, disrespectful, and excessive undermines the symbolic value of the brand, embodied in a distinctive identity, and hence its attractiveness to be licensed, by diluting it. The law functions to regulate consumption as proper to secure brand value, which legally renders the story of Harry Potter undead to the imagination.

Copyright Genius: The Case for a Fair-Use Classification for User-Generated Online Annotations and Commentary

The Internet Age is here, and many questions regarding the legality of certain online practices have developed. Along with user privacy, copyright law stands front and center. With almost universal access to the Internet, copyrighted works are shared easily, instantly, and extensively. This dynamic perfectly represents the balance that copyright law and fair use of copyrights seeks to strike. While incentivizing innovation and creation through copyright protection is essential, too much protection leaves little room for future works to build off of those creations, which in turn limits secondary innovation. One recently newsworthy online project aims to find that perfect balance that protects authors while also allowing the freedom to build off of those authors’ works in a way that both incentivize creation. That project is Rap Genius, an online, community-based, annotation platform that allows users to comment directly on copyrighted song lyrics. When the site first launched, those lyrics were used freely but also constituted copyright infringement. When threatened with a lawsuit, Rap Genius agreed to pay royalties to the copyright holders of the songs.But does that not sound like a case of overprotecting original authors to the determinant of secondary users? Rap Genius argued that it was protected by fair use, the affirmative defense most often used in copyright lawsuits, and developed its platform under that assumption. However, its agreement to pay royalties seemingly represents an admission that what it was doing was not “fair.” Rap Genius was right — at first — what it does is fair and should be protected by fair use. While lines must be drawn in some areas within the online space, the line for community-based, annotation platforms like Rap Genius should allow infringement to occur behind a fair use protection.

Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright

“Fan” culture in the guise of fan-created works like fanfiction, fanart, and fanvids is often connected in the popular imagination with the Internet. However, “fandom” has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom, long before the age of the Internet. Despite their persistence, fanworks have long existed in a nebulous gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. While paying lip service to a requirement of aesthetic neutrality, such analyses tend to become bogged down in unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, whose examination has come to be subsumed by courts’ aesthetic judgments. This de-emphasis of the financial aspect of fair use has strong implications for the realm of fanworks. Fanworks have historically been considered to have little aesthetic value by the dominant culture, which can lead to a knee-jerk finding of infringement in an aesthetic-based fair use analysis. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarters tell us that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detracting from it. Shifting the focus of fair use to a market-based approach would prioritize economic returns over artistic opinions. This can correct the imbalance worked by aesthetic value judgments of free works that cause no economic harm, recognizing that fandoms often operate as market facilitators, not market rivals. This Article examines the phenomenon of fandom and its effect on the original works that have inspired it through the medium of both “old” fandoms that pre-date the Internet age and “new” fandoms that have come of age in a digital world. This Article argues that active fandoms producing a large amount of fanworks tend to aid the goals of copyright. It further posits that fair use analyses should be re-focused on ensuring a meaningful examination of the effect on the market factor that avoids the taint of the courts’ aesthetic judgments. A renewed appreciation for the effect on the market factor would result in a more accurate application of the fair use doctrine that would acknowledge the role of fanworks and their participatory culture in supporting the economic incentive motivation of copyright.