What's So Fair About Fair Use? The 1999 Donald C. Brace Memorial Lecture


This informal lecture grapples with the application of fair use doctrine to creative works that borrow heavily from preexisting works. The authors suggest that the problem with fair use is not so much that it is a nuanced and unpredictable balancing test—it’s that this nuanced test leads to one of two very predictable, non-nuanced outcomes. Either the fair use claim is rejected—in which case the work is enjoined, resulting in a suppression of free speech that we tend to rule out in other areas of expression-based torts—or fair use is found—and the original author has no right whatsoever to remuneration for the valuable use being made of his work. Neither outcome is really satisfactory, and so the authors explore whether it might be better to recalibrate our remedy scheme so as to provide a more nuanced output, one that is more protective both of free speech and of authors’ rights to earn based on the value they create.