All’s “Fair” in Love & Copyright: Copyright’s Incentivization of Fiction Through the Second Fair Use Factor & Idea/Expression Dichotomy

Copyright Law is supposed to encourage authors to create works of authorship, both factual and fictional. However, Copyright jurisprudence has developed to only protect expression, and not idea, to ensure the continued dissemination of knowledge. In solidifying this belief, two doctrines—Fair Use and the idea/expression dichotomy—allow for individuals to utilize other works of authorship without it being considered copyright infringement. Though widely used throughout the judicial system, the analysis for both the second Fair Use factor—Nature of the Copyrighted Work—and the idea/expression dichotomy are left without clear guidelines, leaving judges with an insurmountable task of determining what is and is not protectable under copyright, unknowingly imposing subjective, value-based judgments. By establishing that the determination of what is protectable expression and unprotectable idea in the idea/expression dichotomy is the same as the second Fair Use factor’s factual or fictional determination, this comment encourages courts to abandon the second factor in the Fair Use analysis, or require a more in-depth originality analysis of each individual work in the second factor. Through an analysis of four controversial and subjective, value-based Fair Use decisions, the unknown incentivization of fictional over fact-based works is revealed.