Fair Use

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 93

The fair use doctrine constitutes perhaps the most significant limitation on the exclusive rights held by a copyright owner. The doctrine was developed by courts in the mid-nineteenth century to privilege what would otherwise have been a copyright infringement. Justice Story's decision in Folsom v. Marsh,44 rendered in the Massachusetts federal circuit court in 1841, appears to be the first articulation of the policies underlying fair use. He opined that quoting copyrighted material in the course of preparing a biography or a critical commentary might be excusable, but not "if so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another." Justice Story thought it proper to consider "the nature and objects of the selections made" and "the quantity and value of the materials used." Other courts placed weight on whether unauthorized quotation of copyrighted material "would serve the public interest in the free dissemination of information" and whether the preparation of the defendant's work "requires some use of prior materials dealing with the same subject matter."145.

Although some courts and scholars anchored "fair use" in the plaintiff's implied consent to quotation, as when excerpts are used in literary criticism or comment, this consent proved to be fictive more often than not. The more soundly-based rationale for the fair use doctrine is the very purpose articulated in the constitutional copyright clause: "to promote the progress of science and the useful arts." The fair use doctrine comes into play when a too literal enforcement of the copyright owner's rights would operate to the detriment of the public interest in access to and dissemination of knowledge, and unauthorized copying can be tolerated without significant economic injury to the copyright owner.

The...