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Is Fair Use Law Sexist?

Excuse this dramatic oversimplification of a thesis Georgetown law professor Rebecca Tushnet explores in depth in her 34-page law journal article, but it comes down to this: fair use law favors exploitative sexualization of women. In the article, "My Fair Ladies: Sex, Gender, and Fair Use in Copyright," she explores the principle of copyright law that protects a work as fair use when it is "transformative" of a prior work. She finds that when parody uses female sexuality to make its point, judges are more likely to see fair use.

"Current fair use opinions treat sexualizing a text as automatically constituting relevant commentary on the original, unlike other forms of reworking. Many of the most well-known cases of parodic and transformative use involve sexualization and often mockery of women's (or dolls') bodies. Women's bodies are to be commented on, so the presence of a woman's body in a work makes it fair game for fair use. In other words, when a woman's image becomes public, it is so public that ripping her clothes off is a natural critical response."

Not so fast, responds William Patry at The Patry Copyright Blog, who writes that he does not see the empirical evidence to back up Tushnet's thesis. "The availability of fair use for sexually-themed works has had a mixed reception in the courts," he says, citing several examples. Still, says Patry, the article deserves more careful attention than he can give in a brief blog post. "I intend to study her article in depth before coming to an actual conclusion."

Of course Patry, senior copyright counsel for Google, may have difficulty finding the time to do that now that Viacom has hit the company with a $1 billion copyright suit.

Posted by Robert J. Ambrogi on March 14, 2007 at 05:24 PM | Permalink | Comments (0)

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