A Fair Use Standard for Appropriation
|School||East China University of Political Science|
|Course||Intellectual property rights|
|Keywords||Appropriation Copyright Infringement Fair Use The Three-Step Test|
Appropriation is an post-modern art form and a method for creation. Throughincorporating the already-existing materials into their works, the appropriatorsexpress their comments or criticism on the original work or certain phenomenon ofthe society. It is therefore considered and defined as a form of comment and criticism.However, the appropriators may take the risk of copyright infringement suits, when acopyrighted work is used. Moreover, the fair use standard as general, let alonespecific standard for appropriation in China are by no means sufficiently established,certain problems remains to be solved. And these problems, if properly solved, wouldhave a great pulse on the clearer definition for the rights’ exceptions and limitations,fastening the creation of new works and the balance the interests between copyrightholders and following users, thus fostering the flourish of artistic market.This thesis contains four parts except the introduction and conclusion.Part1defines the concepts of appropriation and work appropriation. This essayfocus on the appropriation of copyright protected works, and the related fair usestandard. Part2discusses China’s current fair use standard for appropriation and theproblems therein. Through analysis on the statutes, the current standard will beconcluded. Litigations and theories related to fair use standard for appropriation willalso be discussed, so as to find out some areas of insufficiency. Part3discusses thestatute, jurisprudence and scholarly attempt to develop the proper standard for safeguarding proper appropriation in America. Four factors of fair use standard and itsapplication in the appropriation context will be introduced. Finally, in part4thesuggestions for the improvement to a better fair use standard for appropriation will begiven. Such as that the ways of fair use should not be exceptional, the three-step testshould be the decisive test to tell whether a certain means of appropriation is fair ornot, the commercial characteristic of the use is not a legitimate standard for fair usetest, investigations on the use of the appropriated works by the copyright holders andits market value should be emphasized. Furthermore, an explanation of the three-steptest in specific context will also be discussed, so as to articulate the application of therather concrete test.