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

Authors

Benjamin Reiser, Fordham University School of LawFollow

Keywords

fair use, 17 U.S.C. § 107, copyright law, copyright infringement, Broadway, theatre, Hamilton, Lin-Manuel Miranda, transformative, transformative use, parody

Abstract

Broadway 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.

Recommended Citation

Benjamin Reiser, Anything You Can Use, I Can Use Better: Examining the Contours of Fair Use as an Affirmative Defense for Theatre Artists, Creators, and Producers, 30 Fordham Intell. Prop. Media & Ent. L.J. 873 (2020).
Available at: https://ir.lawnet.fordham.edu/iplj/vol30/iss3/5