SHARED VALUE OVER FAIR USE: TECHNOLOGY, ADDED VALUE, AND THE REINVENTION OF COPYRIGHT.

The protection of fair use in the arts has become an inflexible binary. Either artist Shepard Fairey has permission to use the Associated Press photograph of Barack Obama to create the Hope Poster, or he has stolen the image in violation of copyright. This legal framework is rigid, inaccurate, and creatively unsafe. Yet it is the interpretation, not the doctrine itself that needs shifting. The copyright statute already includes an overlooked "value" test that can more accurately reflect collaboration and sampling in the digital age. And yet instead, some scholars have responded to digital copying by suggesting we throw out the copyright of art altogether. This suggestion is dangerous. It ignores both the economic contingency of artistic labor and the constitutional mandate to incentivize creativity. The fair use test for art does not need wholesale abandonment but rather careful attention. This analysis requires us to address two errors: to refocus on the artist's, not the judge's, point of view, and to look clearly at a bias in the case law that has created unequal treatment of visual and verbal creativity. Then, an "added value" analysis--that is, adapting the game-theory tool of asking what happens if one actor is subtracted out--can support the legal test of "transformative use " while also framing the relative contributions of the various makers. This analysis of shared value helps everyone: It relieves judges of their awkward tour of duty as art critics. It makes artists feel safe in the moment of creativity, before value is known. It accomplishes the same outcome of so many cases--"The parties ultimately settled--without the costs of litigation or the losses to society. Newer technologies such as blockchain make shared ownership possible. Such systems offer robust economic complements to copyright that protect speech without impeding innovation. [ABSTRACT FROM AUTHOR]