Parody and Perception: Using Cognitive Research to Expand Fair Use in Copyright

This Article draws on cognitive research to examine a conflict within copyright doctrine. Scholars typically analyze unauthorized secondary use of expressive works using an economic or a free speech analysis. The former views copyrighted works primarily as products, the latter primarily as speech. Both paradigms focus on the person doing the speaking or distributing. Copyrighted works, however, protect communication between two parties, which involves both expression and understanding of that expression. This Article argues that because copyright is a right to control certain types of information, how we process information is relevant in determining copyright’s scope. By incorporating lessons from cognitive research on memory, attention, and preference, courts can formulate rules that better balance the rights of owners with the needs of consumers and new users for open engagement with expressive works. More generally, a cognitive approach to secondary use refocuses the debate from a question of what users intend to what audiences require in choosing and consuming such works. This focus is in keeping with copyright’s goal of promoting innovation to further the public good.