ALL’S FAIR IN LOVE AND NEWS: HOW THE CURRENT APPLICATION OF THE FAIR USE DOCTRINE FAVORS THE TRADITIONAL MEDIA OVER AMATEUR PROVIDERS OF NEWS CONTENT

8 Wake Forest Intell. Prop. L.J. 226

This article examines the fair use doctrine and its application to amateur photographers and news media. The article begins by discussing what the author calls a diluted transformative use standard in the four factor analysis of fair use cases. The author discusses in depth cases from the Ninth Circuit dealing with fair use in the wake of the Supreme Court’s holding in Campbell v. Acuff-Rose. The author contends that amateur photographers are likely to be disadvantaged by the current diluted transformative use standard where they fail to immediately share their photographs and films on Internet sites that are not considered traditional news media. The article goes on to conduct a fair use analysis of amateur photos and videos that appeared in recent historical events like the prisoner abuse by the U.S. military, the crash of Flight 93, and the Virginia Tech shootings. The author believes that in order to promote creations resulting from amateur news photography and footage, the lower courts must apply the traditional definition of transformative use and the statutory factor-by-factor analysis.