Chapter 3 argues that copyright’s derivative rights doctrine, with its ever-expansive breadth, has played a powerful, but unappreciated, role in privileging prevailing ideologies over resistive ones, reducing the latter to acts of infringement. With its examination of the long-forgotten copyright disputes involving the translations of Bambi and Mein Kampf from German to English in the lead up to World War II and the infamous standoff between the Charging Bull and Fearless Girl statues on Wall Street, the chapter details the way in which copyright’s outlawing of acts of “semiotic disobedience” has rendered important cultural symbols inviolable and, in the process, ensured the preservation of prevailing narratives on issues related to geopolitics, race, gender, religion, slavery, national heritage, indigeneity, colonialism, capitalism, and corporate governance by suppressing challenges to them. As such, the chapter posits that the derivative rights doctrine has created sacred texts in two senses: works that are sacrosanct and epistemologies that are incontestable. A derivative-rights doctrine that is insufficiently checked (by doctrines such as fair use) not only betrays the core purpose of the copyright regime – progress in the arts – but also forcefully undermines the ability of society (and, particularly, marginalized groups) to resist dominant social and political narratives.

Fair use is an awkward creature. It has been hailed as a legal invention that is essential for human and societal development. At the same time, fair use has become something of a legal monster, causing no end of troubles owing to its vague and shifting contours. Hence, lamentations that fair use is the most troublesome yet least determinate doctrine in copyright law are hardly surprising.