Law Commons^™

Intent In Fair Use, Eva E. Subotnik

Faculty Publications

This Article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. Courts and scholars have largely sided with the former view but have failed to explain fully why this should be the case or whether there might be countervailing benefits to considering evidence of subjective intent. Crucially overlooked is the possibility that taking the user’s perspective into account would serve copyright’s utilitarian …