Is Fair Use Code-able? Part 1 – The Project

We’ve been coding copyright law for a long time.  We were asked, “What about fair use? Is it codeable?”  Challenged accepted.  For three years, the copyright class has investigated this in different manners.  We’ve looked at case law, we’ve looked at special areas, and we concentrated on artists as users (and transformative works).


This project began as a question posed by Kyle Courtney at Harvard.  We took up the challenge and as a Copyright Class in 2013, we spent one month focused on learning about fair use, and attempting to see how we could make sense of fair use using flowcharts.  Geena Yu, a 2L at the time, continued with the project, writing an independent study paper looking at scholarship, and attempting to look at the problem from her own angle.  Dr. Elizabeth Townsend Gard and Geena Yu presented their initial findings at the Works In Progress Intellectual Property Conference at the USPTO in February 2015.  The project is still in its beginning stages.  

Since then, we have also looked at the question in our 2016 advanced trademark/copyright course, looking through the lens of the artist.

Now Helen Buckley, Ben Vanesse and Dr. Townsend Gard are tackling/attempting to code fair use.  We began with non-transformative works, and now are looking at news reporting, transformative works, and scholarship/research.  We think it is codeable.  Stay tuned for more updates on our work.