Guide · Intellectual Property

Fair Use: A Comprehensive Guide to Section 107 After Warhol

U.S. Const. art. I, § 8, cl. 8

Type
Guide
Jurisdiction
National
Date
2024-01-30
Topic
Intellectual Property

Fair use is copyright's most important limitation and its least predictable one — an equitable rule of reason, codified at 17 U.S.C. § 107, that decides whether a critic, a documentarian, a search engine, a parodist, or an AI developer may copy without permission. This UpLaw guide traces the doctrine from Justice Story's opinion in Folsom v. Marsh through its 1976 codification, then works through each of the four statutory factors in depth, showing what courts actually do with them rather than what the words suggest. It reconstructs the doctrine after Andy Warhol Foundation v. Goldsmith (2023), which recentered factor one on the justification for the particular challenged use — not on new meaning alone — and after Google v. Oracle (2021), which applied the factors to functional software and reallocated the roles of judge and jury. It explains transformativeness, commerciality, the parody-satire line, the heart-of-the-work problem, and the circularity trap buried in the market-harm inquiry. It closes on the hardest live question in American copyright: whether training a generative model on copyrighted works is fair use, and what the first merits rulings suggest. Running hypotheticals — a documentary studio and an AI developer — carry each factor from theory into practice.

Fair Use: A Comprehensive Guide to Section 107 After Warhol

Intellectual Property > Copyright | Published 30 January 2024 - Updated 5 June 2025 | UpLaw - uplaw.us

Fair use is the doctrine that lets a critic quote the book she is demolishing, a comedian mock a song, a search engine index the world, and a scholar reproduce a painting she is analyzing — all without asking. It is also the doctrine no one can predict with confidence, and after Warhol the question is no longer "did you add new meaning?" but "what is your justification for copying this work for this use?"

Keywords: fair use, Section 107, Warhol v. Goldsmith, transformative use, Campbell v. Acuff-Rose, parody, satire, four factors, market harm, Google v. Oracle, Harper & Row, derivative works, licensing circularity, AI training data, generative AI copyright

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