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Johnson said: “No man but a blockhead everwrote except for money.” 62Finally, in contrast to its earlier overemphasison the fourth fair use factor – the effect of thecopying on the market for the original work –the Court now gave it no more weight than anyof the others. 63 It sent the case back to the lowercourts to make the final decision on fair use.Fair Use and the Problemof UnpredictabilityAsserting fair use has always been difficultbecause of its unpredictability. Each case turnson its particular facts. Since the four factors aremalleable and partly subjective, even a rigorousanalysis of each of them doesn’t necessarilypredict the result.For example, even though the Supreme Courtrecognized 2 Live Crew’s parody of “Oh, PrettyWoman” as a probable fair use, other rap musicborrowings have not fared as well. One of theearly court decisions on sampling, in fact, didnot even mention fair use – the court simplyquoted the Old Testament (“thou shalt notsteal”) and left it at that. 64 Some later decisionsrecognized the importance of borrowing tomusical creation, 65 but the legal uncertaintysurrounding sampling, along with the clearanceculture, has greatly undermined the creativity ofhip hop artists.Fan sites and fan fiction also exist in legallimbo. Fan sites’ musings, gossip, photos,reviews, plot summaries, transcripts, and use ofcopyrighted characters in new (and sometimesrisqué) fictions mix original commentary withborrowed material in a way that should havea strong claim to fair use. Yet entertainmentcompanies generally view any copying – andsometimes even paraphrases – as infringement.The decided cases aren’t typical of fandom becausethey tend to involve highly commercial effortsto exploit copyrighted works. A court ruledin 1993, for example, that a book consistinglargely of detailed summaries of episodes fromthe Twin Peaks TV show did not qualify for fairuse. A book of “Seinfeld” trivia met the samefate; in both cases, the courts found much moredirect copying than transformative use, and afor-profit motive that interfered with the copyrightowners’ potential market for “derivativeworks.” 66 But when novelist Alice Randall copiedplot elements and characters from Gone Withthe Wind for purposes of parody and critique, anappeals court found that the fair use defense wasavailable, and reversed an injunction that hadsuppressed the book. 67Political commentary also has a strong claimto fair use. One court accepted the defense wherea cult de-programmer got hold of a privateseminar’s course manual, hired two experts tocritique it, and then posted their reports, whichquoted the manual, on his Web site. 68 But anewspaper that published six standardized testsin their entirety in order to stir public debateabout their educational value lost on fair use; thejudge thought that the paper could have madeits point by quoting only parts of the tests. 69And a satirical look at the O.J. Simpson case,rendered in the doggerel rhyme scheme of theDr. Seuss books and borrowing some of theirsignature images, was ruled ineligible for fairuse largely because it wasn’t a true parody – itdid not ridicule Dr. Seuss but simply copied hisstyle and characters to tell a version of the NicoleSimpson murder story. 70Similarly with news reporting, even thoughit is specifically mentioned in the fair use law,judges’ conclusions are hard to predict. When aTV station broadcast 30 seconds of video footagedocumenting the Los Angeles police beating ofa civilian, an appeals court said this took theheart of the video and affected owner’s ability tomarket it; it reversed a lower court ruling in favorof fair use. 71 When Reuters distributed the sametapes to its subscribers without authorization,the courts balanced the factors and again foundno fair use. 72 But when Court TV used parts ofthe footage to promote its coverage of a trial ofsome of the officers involved in the beating, thecourt found fair use. 73 And a newspaper thatpublished a nude photo of Miss Universe PuertoRico without authorization was engaged in fairuse because, according to the court, the photowas “particularly newsworthy.” 74In 2000, copyright expert David Nimmerindependently analyzed the four factors in everyfederal court case on fair use since the Supreme10 Will Fair Use Survive?