Fair use generally refers to the federal copyright law exception contained in Section 107 of the Copyright Act. Because the White Album is not protectible under federal copyright law, fair use is not directly applicable.

State courts, however, are likely to look at federal fair use principles, as well as general principles of "equity" (i.e., fairness) in applying state law doctrines. There are a number of characteristics of the Grey Tuesday protest that would likely weigh in favor of those who post the Grey Album:

1. the posting of the Grey Album is for a noncommercial purpose;
2. downloads of the Grey Album do not substitute for purchases of the White Album;
3. the Grey Album is a transformative use of the White Album, not a wholesale copy; and
4. the posting of the Grey Album is intended as part of a commentary on the use of copyright law to stymie new kinds of musical creativity.