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July 31, 2017


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Laura Heymann

If you haven't read it already, check out Andrew Gilden and Timothy Greene, Fair Use for the Rich and Fabulous, 80 U. Chi. L. Rev. Online 88 (2013) (at

Brian Frye


Thanks for mentioning Andrew's work, which I have found quite compelling, although I don't necessarily agree with all of his conclusions. While I think he is right that fair use is (effectively) discriminatory, my policy preference would be to expand it, rather than restrict it. Sauce for the goose is sauce for the gander?



The Pape and Pope cases both look like a misuse of copyright to expansively attempt to cover the entire "basic idea" of what the artists' original work was.

Unfortunately we've had district courts bite on these sort of claims before.

Brian Frye

Concerned Citizen,

Thanks for your comment. I agree with your assessment of both the doctrinal & practical viability of the Pape & Pope infringement claims. I think they are interesting because the reflect (or maybe illustrate?) the divergence of (theoretical) copyright doctrine and art world copying norms, which tend to excuse art world insiders who copy works created by art world outsiders, but which tend to be quite broad when it comes to insiders copying insider - closer to "plagiarism" norms that copyright. Anecdotally, copying another artist's "style" or "ideas" is normatively prohibited, even though non-infringing, unless part of an explicit homage or parody to the original. In other words, attribution plays a significant role, even though it (nominally) isn't (typically) required by copyright doctrine, with the arguable and limited exception of VARA rights.


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