what is FAIR in "fair use?"

Trademark Owners Whine, "No Making Fun of Me!"

-Bollier

When the term "fair use" was first spelled out to me in the beginning of this semester, I naively thought it was one redeeming, objective quality to the often hazy, unclear laws of copyright and trademarks. However, as the semester has progressed and I have read more and more, particularly the examples illustrated in Brand Named Bullies, I have come to realize that no exceptions are set in stone. "Fair use" is a loose, subjective principle with many inadequacies that leave judges to ultimately determine what they consider to be fair and what they consider to not be fair. Take parody, for example. According to Bollier, "Parody is a classic genre of human societies and one of the most effective forms of political expression." Therefore, parody falls under the fair use category as it is considered something that benefits society. However, Bollier asks, "But can it survive copyright and trademark law of the twenty-first century?"

Through a series of telling examples, including Mattel's control over his trademarked and copyrighted Barbie, Bollier shows the inconsistencies in which parody is awarded (and many times not awarded) as fair use. Bollier points out, "Add in the variable cultural tastes of judges, and it is no surprise that courts apply highly inconsistent standards for parodies. Each case is something of a crapshoot for the defendant jokester." This puts "jokesters," who often have something very expressive and very important to say in a dangerous position. The term "parody" is not black or white and is determined by the "conjuring up" test, which according to Bollier involves, "Does the parody conjure up enough--but only enough-- of the original work to achieve its comedic effects? Any superfluous uses are prohibited." As noted by Bollier, there is a fine line between what is enough and what is not enough. Although fair use does theoretically provide protection, it does not always in reality. 

Overall, I am very frustrated and very confused. How can the law be changed/re-written to make the laws clearer, easier to understood, and fair . Is that even possible?