Anything You Can Use, I Can Use Better: Examining the Contours of Fair Use as an Affirmative Defense for Theatre Artists, Creators, and Producers
Benjamin Reiser
Note

  The full text of this Note may be found here.

30 Fordham Intell. Prop. Media & Ent. L.J. 873 (2020).

Note by Benjamin Reiser*

ABSTRACT

[B]

roadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair use jurisprudence. In particular, this Note argues that the fair use doctrine remains analytically unclear and difficult to follow and proposes that the transformative use inquiry—which was articulated in 1994 by the Supreme Court in Campbell v. Acuff-Rose Music, Inc.—be abandoned in future fair use analyses in favor of expressly following the four statutory factors enumerated in 17 U.S.C. § 107. Lastly, this Note directly addresses theatre artists, creators, and producers, and advises them that when writing, developing, or mounting a new theatrical production, any reliance on the fair use doctrine ought to be avoided. Instead, alternative avenues should be explored in order to circumvent copyright ownership challenges.

* Online Editor, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXX; J.D. Candidate, Fordham University School of Law, 2020; B.A., Government and American Studies, Georgetown University, 2017. Thank you to Jason Baruch, Marc Hershberg, Susan Mindell, and Seth Stuhl for being sources of inspiration and kindness, Professor Olivier Sylvain for his encouragement and valuable recommendations, and all members of the Journal for their assistance, and in particular, Senior Writing & Research Editor Elliot Fink for his thoughtful feedback. I am especially grateful to my family—my parents, Andrea and David, my brothers, Jacob, Zachary, and Matthew, and our sweet pups, Phoebe and Maisie—for unceasing love, support, and guidance.