Law Commons^™

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Belmont Law Review

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use transformativeness inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works. Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …