Introduction

Some conceptions of the fair use limitation of US copyright law have their groundings in the case law out of which the doctrine emerged.1 (I call these the “bottom-up” approaches.) Other theories of fair use have sprung from the very bright minds of copyright scholars whose collective goal has generally been to bring some needed coherence to the common law of fair use.2 (I call these “top-down” approaches.) The Dual-Grant Theory of Fair Use is the latest of the top-down theories to have appeared in the literature.3

The concept of fair use was first articulated in an 1841 copyright decision by Justice Joseph Story in Folsom v Marsh.4 In deciding whether a use was fair or infringing, Story thought that courts should consider “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.”5 For the next 135 years, courts weighed these factors in typical common-law fashion in a wide variety of cases.6 Not until 1976, however, did Congress choose to codify the fair use limitation in US copyright law.7

As codified, the fair use provision identifies six types of favored uses, namely, “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”8 Drawing on Folsom and the fair use case law, Congress directed courts to weigh four factors when determining whether a use was fair or infringing:

(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.9

In the forty years since the fair use doctrine was codified, courts have grappled with fair use defenses in hundreds of cases. One of the great virtues of fair use is its flexibility, for it allows courts in a wide variety of contexts to balance the interests of copyright owners in having control over unfair exploitations of their works and the interests of follow-on creators and other users in having some freedom to make reasonable uses of copyrighted materials, some of which may have spillover benefits for the public at large.10 Yet, because of the fact-intensive and case-by-case nature of the common law of fair use, commentators often complain that it is unpredictable and incoherent.11

There are two different approaches one can take when developing an overarching theory of fair use. One is a top-down theoretical approach, such as the one that Professors Abraham Bell and Gideon Parchomovsky have taken in Dual-Grant. The other is a bottom-up approach, which involves reading the fair use cases closely and attempting to discern whether there is, in fact, any unifying principle that underlies the common law of fair use.

My article Unbundling Fair Uses was the product of this kind of bottom-up approach, based on my reading of more than three hundred fair use cases in the order in which they were decided.12 One conclusion of that paper was that fair use law is much more coherent and predictable than its critics often say.13 After reflecting on the fair use cases and the policy-relevant clusters in which they typically fall, I offered a bottom-up theory of fair use as a manifestation of the limited monopoly conception of copyright14 that is reflected in this statement from the Supreme Court’s Sony Corp of America v Universal City Studios, Inc15 decision: “[A] use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such [ ] uses would merely inhibit access to ideas without any countervailing benefit.”16 Although Justice John Paul Stevens made this statement in the context of considering the fairness (or lack of it) of private, noncommercial copying, the observation strikes me as a generally sound principle of fair use law.

The bottom-up limited monopoly theory endorsed in Unbundling Fair Uses may not be as elegant as the overarching top-down theory endorsed in Dual-Grant, but it does have the virtue of accounting for a much wider range of contexts in which fair use has been raised. My theory is also consistent with fair use law as it has been interpreted by the US Supreme Court, among others, and with the constitutional policies that underlie US copyright law. This Essay explains why I think that Dual-Grant takes an unduly narrow view of the work that fair use does and should do in US copyright law, is blatantly inconsistent with existing case law in more ways than it acknowledges, fails to recognize important values found in many fair use cases, and would, if followed, have the unintended consequence of making fair use more unpredictable and incoherent than it is now.

  • 1. See, for example, Harper & Row, Publishers, Inc v Nation Enterprises, 471 US 539, 550–51 (1985) (endorsing the “implied consent” theory of fair use, under which a use will be deemed fair if a reasonable author would have agreed to it), citing Folsom v Marsh, 9 F Cases 342, 344–349 (CCD Mass 1841). See also Alan Latman, Fair Use of Copyrighted Works, Study No 14, Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 86th Cong, 2d Sess 6–18 (1960) (reporting on the author’s empirical study of the fair use case law and recommending codification of the fair use limitation).
  • 2. See, for example, William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv L Rev 1659, 1766–83 (1988) (articulating a semiotic democracy theory of fair use).
  • 3. See Abraham Bell and Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U Chi L Rev 1051, 1059 (2016).
  • 4. 9 F Cases 342 (CCD Mass 1841). For an excellent discussion of this case, see generally R. Anthony Reese, The Story of Folsom v. Marsh: Distinguishing between Infringing and Legitimate Uses, in Rochelle Cooper Dreyfuss & Jane C. Ginsburg, eds, Intellectual Property Stories 259 (Foundation 2006).
  • 5. Folsom, 9 F Cases at 348.
  • 6. See Latman, Fair Use of Copyrighted Works at 8–14 (cited in note 1).
  • 7. See Copyright Act of 1976 § 107, Pub L No 94-553, 90 Stat 2541, 2546, codified as amended at 17 USC § 107.
  • 8. 17 USC § 107.
  • 9. 17 USC § 107.
  • 10. See Glynn S. Lunney Jr, Fair Use and Market Failure: Sony Revisited, 82 BU L Rev 975, 977 (2002) (viewing fair use as an “arbiter between two competing public interests”).
  • 11. See, for example, Bell and Parchomovsky, 83 U Chi L Rev at 1053 (cited in note 3) (describing fair use as “amorphous and vague, and . . . notoriously difficult to apply”); Michael W. Carroll, Fixing Fair Use, 85 NC L Rev 1087, 1092–1121 (2007) (criticizing the application of the fair use doctrine as providing insufficient ex ante clarity).
  • 12. Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L Rev 2537, 2542 n 29 (2009).
  • 13. Id at 2541.
  • 14. Id at 2617 (endorsing the limited monopoly theory of copyright as a grounding for the fair use doctrine).
  • 15. 464 US 417 (1984).
  • 16. Id at 450–51.