Culture and Fair Use
Michael P. Goodyear
Article

he intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.

Cultural adaptations—the transformation of preexisting works to reflect the cultural and social mores and norms of a different group—would appear at first glance to be prohibited as derivative works, which, under the Copyright Act, can only be created by copyright owners. A culture-centered approach to fair use, however, offers the possibility of permitting at least certain cultural adaptations. While this question would be one of first impression for courts, cultural adaptations can—and should—be understood to constitute fair use. Cultural adaptations comment on and transform the original work by recontextualizing it for different cultural markets. In addition, permitting cultural adaptations advances the goal of copyright and the public policy goal of diversity in expression and representation by fostering the creation of more works, and especially more works for and by minority artists.

*J.D., University of Michigan Law School (2020); A.B., University of Chicago (2016). The author would like to thank Trevor Reed and Todd Larson for their invaluable insights and suggestions on earlier drafts of this Article. The author would also like to thank Michael Modak-Truran for his support and help in developing the ideas presented in this Article. Finally, the author would like to thank the editors of the Fordham Intellectual Property, Media, & Entertainment Law Journal for their helpful suggestions and for bringing this article to print.