Browse Issues Search Articles Submissions About the Journal Copyright Fixation Podcast Subscribe Go back to Issues FAIR USE FACTOR FOUR REVISITED: VALUING THE "VALUE OF COPYRIGHTED WORK" Citation: 67 J. COPYRIGHT SOC’Y, 19, (2020) Jane C. Ginsburg Columbia Law School Introduction Recent case law has restored the prominence of the fourth statutory factor “the effect of the use upon the market for or value of the copyrighted work”- in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of”the value of the copyrighted work” identifies independent kinds of harm and entails considerations distinct from market substitution. Those harms include the undermining of business models in which the “value of’ the copied work may be its utility as a “draw” for goods or services other than the copied work. Similarly, in some public licensing models, the “value of’ a work may in- here in its role in an ecosystem of innovations: payment-free “Share Alike” licenses may lack monetary worth, but their terms ensure that follow-on creators make available to subsequent authors the new matter contributed to the content whose copying each successive license permitted. Relevant con- side rations also concern creators’ economic and moral interests in being recognized as the authors of the copied works. This Essay explores the basis for and consequences of according autonomous value to the inquiry into the impact of the use upon the “value of the copyrighted work.” Full Article jocoso67sm-1 Fair Use Factor FourDownload Related Content Video Nov 4, 2025 Bartz and Beyond: Year Three of AI Copyright Litigation with Implications for Authors, Publishers, and Creators Now in the third year of copyright litigation over generative AI, the stakes for creators, platforms, and the publishing world… CLE Credit AI & Copyright Copyright Litigation in Focus Creativity & Technology Collide Video Nov 12, 2025 Getting Your Arms Around the Public Domain: What to Know As Another Year's Worth of Content Becomes Available November 12 @ 1:00 pm - 2:00 pm ET Getting ready to field public domain questions in the new year?… CLE Credit AI & Copyright Creativity & Technology Collide Journal September 28, 2025 LIBRARIES, EDUCATION, AND FAIR USE: A LECTURE 72 J. Copyright Soc'y 861Download AI & Copyright Creativity & Technology Collide