The Policy Behind Fair Use

Congress codified the fair use doctrine 17 U.S.C. §107. Section 107 in its entirety provides:

  • Notwithstanding the provisions of sections 106 and 106A, 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.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Congress first codified the fair use doctrine in the 1976 Copyright Act, but courts had been applying fair use at least since Supreme Court Justice Joseph Story's 1841 decision in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841)(No. 4901). Judges and scholars have struggled to categorize fair use. It has been called an affirmative defense, a user privilege, and even an affirmative right. Some scholars have viewed it as a solution to market failure – as a means of permitting a use when the transaction costs were too great relative to the use, e.g., a short quotation, or the copyright owner refused to license the use, e.g., a parody.1

Regardless of its categorization, fair use has a constitutional dimension. Scholars have long noted a tension between the Constitution's Intellectual Property Clause, which authorizes Congress to provide copyright protection to authors, and the First Amendment, which prohibits Congress from restraining speech. Litigants have attempted to exploit this tension in an effort to convince courts to declare various provisions of the Copyright Act unconstitutional. The U.S. Supreme Court recently rejected such an effort on the grounds that the "copyright scheme … incorporates its own speech-protective … safeguards." Eldred v. Ashcroft, 123 S.Ct. 769, 788 (2003). In Eldred, Justice Ginsburg specifically identified fair use as one of copyright law’'s "built-in First Amendment accommodations…." Id. at 788-89.

In other words, fair use is not simply an exception created by Congress during the course of the political process that led to the 1976 Copyright Act, nor is it just an enactment of a long standing judicial principle of equity. Rather, fair use is a constitutionally required structural element of the copyright law that harmonizes the copyright law with the First Amendment. As the Eleventh Circuit's Judge Stanley Birch recently argued in the Brace Lecture sponsored by the Copyright Society of the U.S.A., fair use is essential to the constitutionality of the Copyright Act.2

Fair use also plays another constitutional role: it helps achieve the stated objective of the Intellectual Property Clause – promoting the progress of science and the useful arts – by permitting socially beneficial uses that do not unreasonably prejudice the copyright owner. The Supreme Court explains that fair use is an "equitable rule of reason which permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U.S. 207, 237 (1990)(emphasis supplied). Judge Kozinski writes that fair use, along with the idea/expression and fact/expression dichotomies, are "necessary to maintain a free environment in which creative genius can flourish." White v. Samsung Electronics, 989 F.2d 1512 (9th Cir.)(Kozinski, J., dissenting), cert. denied, 113 S. Ct. 2443 (1993). Judge Kozinski observes that these limitations allow "much of the fruit of a creator's labor may be used by others without compensation." Id. Paraphrasing the Supreme Court's decision in Feist v. Rural Telephone, 111 S. Ct. 1282, 1289-90 (1991), Judge Kozinski stresses that this reuse "is not some unforeseen byproduct of our intellectual property system; it is the system's very essence." 989 F.2d at 1517. Judge Kozinski explains that "culture, like science and technology, grows by accretion, each new creator building on the works of those who came before." Id. The intellectual property system provides authors with an incentive to create, but at the same time permits other authors to build on this creativity. This "is the means by which intellectual property law advances the progress of science and art." Id.

In sum, fair use is part of the constitutional fabric of the copyright law. It harmonizes the IP clause with the First Amendment, and it promotes the progress of science and the useful arts by allowing new authors to build on the work of earlier authors.

  1. Judge Stanley Birch of the U.S. Court of Appeals for the Eleventh Circuit provides a thorough overview of fair use scholarship in Stanley F. Birch, Copyright Fair Use: A Constitutional Imperative, 54 J. Copyright Society 139 (2007)
  2. Stanley F. Birch, Copyright Fair Use: A Constitutional Imperative, 54 J. Copyright Society 139 (2007).