Fair Use – Some Background

The concept of fair use was first introduced into the U.S. law of copyright by a court in Massachusetts in 1841. Rev. Charles W. Upham wrote an 866-page, two-volume book about George Washington. Three hundred and fifty-three of the 866 pages were letters written by George Washington. The letters were part of a collection owned by a Mr. Sparks, who had purchased them, archived them, published them, and—most importantly—owned the copyright to them.

Rev. Upham’s book was based almost entirely on these letters and, without them, the book would have been quite insignificant. What’s more, it was the most interesting and valuable letters that Rev. Upham took from Mr. Sparks’ collection.

Mr. Sparks sued the good Rev. Upham for copyright infringement. Rev. Upham said, “It is only fair that I be able to use these letters in my book.”

Mr. Sparks won.

There were no fair use cases at that time, so the judge had to create the logic for his conclusion. The judge said that when deciding issues of this sort, one must “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”

These factors all weighed in favor of Mr. Sparks. In fact, these original factors are the core of the four factors that the courts still use to decide fair use cases today.

While the court didn’t use the words “fair use,” it obviously didn’t think Rev. Upham had been fair in his taking, and this case is where the fair use concept was born. Since then the courts have been developing and refining the concept for more than 160 years. Congress wrote the same basic approach of the courts into Section 107 of the Copyright Law when they overhauled the Copyright Law in 1976. But Congress still left it up to the courts to decide fair use on a case-by-case basis and to make their decisions considering all of the facts, not just the answers to the four questions that are set out in the statute.

The language of Section 107 seems simple enough:

The fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

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.

You can see from the language of the statute that there is no list of uses that are always and under all circumstances permitted under the doctrine of fair use. The language does not give definitive guidance even to the courts, let alone the layperson. Congress merely listed some of the areas in which fair use is possible and some of the questions the courts must ask.

To make matters worse, the appellate courts are not consistent in their opinions about which one of the four factors is most important. In a trilogy of cases decided in 2001, the federal trial courts in New York City took the position that the first factor is the most important. Most of the trial and appellate courts in the rest of the country had been taking the position that the fourth factor is the most important factor. The Supreme Court corrected the matter by stating that all factors were to be explored, and the results weighed together.

(Originally published at GoArticles and reprinted with permission from the author, Michael C. Donaldson).