Copyright, fair use and motion pictures

The increasing reliance of motion picture production on the appropriation of reality has given rise to tensions that have been expressed in terms of conflicts over copyright. These tensions have become more acute over time, as the “real” environment has become more and more saturated with media artifacts, and as copyright law itself has extended its domain over more and more of those media objects. Within copyright law, the tension between contemporary creators’ needs for access to preexisting material, on the one hand, and the imperatives of copyright ownership, on the other, are mediated primarily by the so-called “fair use” doctrine. The application of this venerable legal concept, which exempts some substantial takings of protected content from infringement liability, is the subject of this essay.