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54 Syracuse Law Review 665 (2004)


This article examines the fourth fair use factor in copyright law in cases in which the unlicensed use benefits, or has no effect on, the copyright holder's market. It proposes a two-part framework for these cases. If the unlicensed use is transformative or public, and the use does not harm the copyright holder's market, the copyright holder's economic expectancy is protected, and the user should not have to pay damages, analogous to the law of eminent domain. In cases in which the unlicensed use is private, the court should protect the rights of the copyright holder with damages, even if the those rights are personality or moral rights, rather than economic rights, because there is no public interest in protecting the unlicensed use. NOTE: Duhl would like us to try to put the article in these eJournals, in add'n to the WMCL journal, and I told him we would try to do this: Contracts & Commercial Law eJournal, Intellectual Property Law eJournal (copyright), Property, Land Use & Real Estate eJournal, Science, Technology & Innovation Research Papers.