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Excerpted From: Michael P. Goodyear, Culture and Fair Use, 32 Fordham Intellectual Property, Media and Entertainment Law Journal 334 (Winter, 2022) (312 Footnotes) (Full Document)


MichaelPGoodyearCopyright offers protection for the works of all artists. Whether an artist weaves a Navajo rug, composes a rap, fires a ceramic teacup, or films the next Hollywood blockbuster, the work should be protected so long as it meets the basic requirements for copyright. Copyright law has not, however, provided equal opportunities for artists of all races. The Copyright Act is framed in a Western understanding of art and creativity--a poor fit for many traditional and modern forms of creativity practiced by Black, Native American, and Latinx communities, as well as others. This has allowed white artists and industries to appropriate the artistic creations of other races and cultures with little compensation to the original creators. It has further facilitated the development of significant barriers to certain genres. However, copyright can be recrafted in a way that both considers and helps promote culture.

Almost immediately, one is confronted with the problem that the term “culture” is inherently opaque and difficult to define. The United Nations Educational, Scientific, and Cultural Organization's (“UNESCO”) Convention on the Protection and Promotion of the Diversity of Cultural Expression defines cultural diversity as the “manifold ways in which the cultures of groups and societies find expression ... [including] through diverse modes of artistic creation [and] production ....” Cultural activities, goods, and services are those that “embody or convey cultural expressions, irrespective of the commercial value they may have.” In the United States, a focus on culture and cultural diversity typically centers around race, gender, political viewpoint, and other forms of sociologically created differences. This Article uses the U.S.-centric understanding of culture, defining it specifically as a unique form of expression that is produced, consumed, and recreated--at least in part, although not exclusively or monolithically--by a racial or ethnic social group.

Despite the important role of culture in copyright, it has largely been unexamined in the literature. In 1999, lawyer and entertainment law scholar K.J. Greene found that legal scholarship mostly neglected the relationship between culture and copyright. Despite calls for examining the racial implications of intellectual property, this dearth of scholarship has largely persisted. Scholarship examining the relationship between minority cultures and copyright primarily focuses on identifying the problem of how U.S. copyright affects minorities rather than suggesting solutions. In looking to rectify the tension between culture and copyright, the most commonly advocated solution is the adoption of moral rights, a set of rights most countries have incorporated into their copyright laws, but that remain largely unrecognized in the United States. A recent article by Trevor Reed takes a unique perspective by arguing that cultural appropriation (of Native American works in particular) should be limited by reinvigorating the second fair use factor: the nature of the copyrighted work. This Article, instead, acknowledges that cultural appropriation by white people is a problem, and that it will likely remain one, but it reverses the lens to instead focus on how non-white authors can culturally adapt works intended for white audiences to reach diverse and new markets. In a previous Article, I advocated a standalone cultural adaptation exception for copyright in the context of film in India. However, that proposal is outside the realm of existing U.S. copyright law.

This Article, instead, hopes to offer one potential practical method under the U.S. Copyright Act to mitigate the disparate treatment of racial minorities under U.S. copyright law. Drawing inspiration from my previous work on cultural adaptation in Bollywood, this Article examines the question of cultural adaptation under the U.S. Copyright Act. It proposes that under existing precedent, fair use can be interpreted to allow cultural adaptations, increasing the possibility for artists from different cultures to adapt works to their own unique experiences and audiences.

In Part I, this Article traces some of the most notable ways in which U.S. copyright law has excluded other cultures. Part II defines cultural adaptations and how creative works are partially consumed based on one's race and culture. Part III sets the scene for the legal analysis of this Article by examining whether the primary purpose for copyright in the United States is to allow authors to profit or to encourage the creation of new works. In Part IV, this Article explains how U.S. fair use offers an opportunity for cultural adaptations not present in other countries. It then fits cultural adaptations within the confines of the four-factor fair use test. Part V explains some of the most salient benefits of permitting cultural adaptations under fair use before offering concluding thoughts.

[. . .]

The tension between race and copyright is deep-seated and needs greater attention in legal scholarship. This Article offers but one potential approach to help make copyright law more equitable for artists of all races and cultures. Unlike India and other countries with rigid exceptions to the rights held by copyright owners, the United States has the flexible fair use exception. So far, cultural adaptations have been discouraged by the exclusive derivative work right. However, certain cultural adaptations could-- and should--fit within the confines of fair use. Permitting cultural adaptations under fair use promises to further the purpose of copyright in addition to benefiting minority artists and society as a whole.

While this Article focuses on cultural adaptations, this is just the beginning of the conversation concerning diversity and fair use. Judges should approach the four-factor fair use analysis with an understanding of the challenges, realities, and possibilities for increasing diverse works. Courts can consider the cultural impact of not only works by artists of color, but also artists of different genders, sexualities, and socioeconomic backgrounds, as well as other axes of difference. Incorporating an understanding of diversity into fair use can foster more creative works from diverse authors and, ultimately, increase accessibility to and understanding of a more diverse palate of artistic works.

J.D., University of Michigan Law School (2020); A.B., University of Chicago (2016).

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