What Is Fair Use and Why Are the AI Judges Getting It Wrong?

Fair use is one of the most important doctrines in copyright law. It allows limited use of copyrighted works without permission under specific circumstances. But as federal judges begin to evaluate AI-related copyright cases, we’re seeing some controversial interpretations that may not hold up.

Let’s break it down.

The four fair use factors are:

1. Purpose and character of the use (e.g., is it transformative?)

2. Nature of the copyrighted work (e.g., factual vs. creative)

3. Amount and substantiality used

4. Effect on the market for the original work

Some judges have argued that using copyrighted books to train an AI model is transformative because the model doesn’t spit out exact copies. But this logic skips over the sheer scale and purpose of the use. If an AI model learns from 500,000 books to create outputs that compete with those books, is that really transformative? Or is it just commercial repurposing without compensation?

We believe younger generations, digital natives who grew up with remix culture, but also respect for creators, would view this differently. They understand that just because something is technically possible doesn’t mean it’s legally or ethically justified. As these cases continue through the courts, we hope to see a more balanced and forward-thinking application of fair use principles.

If you’re unsure if your brand is protected, book an appointment with our team today!