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The Fifth Element: The Unspoken Element In The Fair Use Four-Part Test, B. Douglas Robbins

B. Douglas Robbins

For artists seeking to use copyrighted media in their installations without having to purchase a license, fair use seeks satisfaction of a fluid four-part test. Nowhere in this four-prong test is there any mention of whether the copyrighted material used is unique or a member of a category of work in limited supply. Yet numerous courts have pondered this unspoken “Fifth Element,”—the question of limited availability or uniqueness—when evaluating fair use claims. This paper examines the Fifth Element and the deeper analytical and policy reasons for its emergence, despite any explicit endorsement from Congress.