Tim Wu, Professor of Law at Columbia and blogger, wrote an article for Slate last week titled “Is There ‘Hope’ for Shepard Fairey? How does fair-use law work, anyway?” The article strikes me as good vehicle to explain fair use to people who are just starting to explore copyright in that it is sufficiently wonky to dig beneath the surface of a sometimes murky issue, but at the same, written in prose that is geared towards a broader audience. Wu explains fair use through situational categories, similar to the type suggested in Pamela Samuelson’s work Unbundling Fair Use:
What counts as a “good reason”? In addition to our two examples, take a look at what has been declared fair use by courts or legislatures. They include:
- Quotations of reasonable length
- Parody (but not satire)
- Use in news reporting
- Time-shifting (recording TV for later viewing)
- Thumbnailing (resizing) for image search engines
- Reverse-engineering for a new operating platform (figuring out what you need to do to write a game that works on a Sony Playstation)
- Limited copying for classroom or educational use
Wu proceeds to pin down why so many copyright pundits are fascinated by the Associated Press-Shepard Fairey copyright dispute, at least before the recent revelations about the assertions in Fairey’s complaint: It presents a new category that has yet to be evaluated:
Shepard Fairey’s case, setting aside his recent troubles for a moment, is one of these new areas. To “Warholize” someone else’s photo (if that’s the right verb) doesn’t fall within an existing category of fair use. So the question is whether it should.
Wu ends by explaining why the four factors Judge Story used in Folsom v. March, now embodied in law in 17 U.S.C. 107, often seem to play a marginal role when courts evaluate fair use today, outside of the context and era of the opinion:
Oddly enough—and, to my mind, for no particularly good reason—other thoughts of Story’s from 1841 on fair use remain the law. In Story’s time, the Supreme Court heard a copyright dispute over an abridgment of a long biography of George Washington. Story wrote “we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” . . .
Is the [Hope image] fair use? Odds are, Story’s general principles didn’t answer the question for you. More probably, you have a gut reaction of some kind, which is, of course, how judging generally works—as Justice Oliver Wendell Holmes once put it, judges decide first and write their reasons later.
Recent scholarship from the 
