Copyright

The Tyranny Of Fair Use: How A Once-Humble Copyright Doctrine Tormented A Generation Of Litigants

We have strayed far afield from the doctrine’s genesis.

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Join me, if you will, on a tortuous journey into the most fetid and murky corner of copyright jurisprudence, an area so rife with ambiguity and contravention that experienced litigators have been known to blot out their own eyes when reviewing the latest in a never-ending string of gobsmacking court decisions.

I speak, of course, of the “fair use” doctrine, a once noble and straightforward attempt by courts to allow teachers and book critics to use in certain limited, non-commercial ways the work of an author without the author’s consent. We have strayed far afield from the doctrine’s genesis, and, in three parts, we will now explore the history of the the “fair use” defense, the massive decades-long havoc wreaked by just one person with a novel idea about the doctrine’s application, and the reverberations of the doctrine’s opacity and convolution across today’s litigation landscape.

Let us begin by looking back. Not just to last year, when we did a shallow dive into this subject matter, but way back to the 1700s. The Statute of Anne, enacted in Great Britain in 1710 and widely acknowledged as the first statute addressing copyright, contained no reference whatsoever to this thing we now call “fair use.” Nor did the first U.S. copyright statute, which was signed into law on May 31,1790 by George Washington and which was, ironically, copied to a large extent from the Statute of Anne, with the opening bit tracking closely to the prior work.

The subsequent iterations of our statute in 1831 and 1909 were also devoid of any protection for the “fair use” of another’s original creations. But, during this period courts began toying with the idea of legally sanctioned use without consent in certain limited contexts. The Folsom v. Marsh case was seminal. A Massachusetts matter decided in 1841, it is widely recognized as the first U.S. “fair use” case. Justice Joseph Storey, who presided thereover, lucidly demarcated the contours of what would qualify as a “fair use,’ setting forth factors that would eventually be codified as part of the Copyright Act and which are still, in a mutated way, in use today. After giving structure to the “fair use” doctrine, it should be told, Justice Storey rejected its application, finding that the defendant’s copying of 353 pages of the plaintiff’s epic tome on George Washington was not a fair use.

For over a hundred years, “fair use” cases following Folsom were neatly and almost uniformly decided in line with Folsom’s holdings. In 1976, when the Copyright Act was amended to include the Folsom factors, the government concluded that the amendment was “intended to restate the [pre-existing] judicial doctrine of fair use, not to change, narrow, or enlarge it in any way,” as noted in H.R.Rep. No. 94–1476 at page 66. The amendment sets forth, at Section 107, the factors that should drive the “fair use” analysis: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

If, after consideration of those factors, the court concludes that the use was “fair,” the user would enjoy a complete defense. Given this windfall in the form of use without consent or payment, this threshold was supposed to be challenging to meet. Indeed, when the Supreme Court addressed the issue in 1985, in Harper & Row Publishers v. Nation Enterprises, it noted that the “fair use” query boiled down to “would the reasonable copyright owner have consented to the use?” If not, the use could hardly be found fair.

For the longest time, both before and after the 1976 Copyright Act, just about everyone was in agreement that the fourth factor – the effect on the market for the original work – was paramount in importance. In Harper & Row, for example, the Supreme Court concluded without much dithering that factor four was “undoubtedly the single most important element of fair use” and went further noting that the effect should be judged both in connection with the specific use in question and more broadly, considering the effect that would result if the type of use at issue became widespread. Not an easy test to pass, but a test with clear guidance and concrete terms.

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The clarity of the “fair use” doctrine that existed from 1841 until almost the 21st century resulted in a consistent and tranquil state of the law. But as the 1900s wore down and the new millennium beckoned, this placidity was precarious if not downright fragile for reasons noted by Judge Storey way back in Folsom. “Patents and copyrights,” he wrote, “approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of law, where the distinctions are, or at least may be, very subtile [old-timey sic] and refined, and, sometimes, almost evanescent.” An amorphous area of law that veers into the metaphysical and evanescent is one that is vulnerable to corruption. All it would take is one with the means, influence, and savvy to disrupt a 150-year old doctrine. We will identify this person and catalog their influence next week.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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