CAMPBELL AS FAIR USE BLUEPRINT?
Pierre N. Leval(fn*)
Friends, copyright geeks, I come not to bury Campbell,(fn1) but to praise it. I might reasonably be considered a biased critic as Campbell took a number of suggestions from an article I wrote.(fn2) Biased or not, I submit Campbell is a beautifully reasoned opinion, which has demonstrated in its twenty-one years that it provides a healthy framework for fair use analysis. That framework promotes the overall objectives of copyright; it protects the interests of rights holders; and it guards against putting "manacles upon science."(fn3)
This is not to say that every case decided under Campbell has been indisputably correct. But disagreement with some decisions of lower courts is not a condemnation of Campbell's blueprint. Furthermore, fair use decisions will often involve difficult appraisals, susceptible to reasonable disagreement. Nor is it surprising to find inconsistency in lower court opinions. Copyright cases come infrequently, especially those with fair use questions. Many judges are often confronting the complexities of fair use for the first time, and may be quick to reach out for what look like easy handholds that are often based on errant dicta.
I. PRE-CAMPBELL
To appreciate what Campbell did for us, we should look at the law of fair use prior to Campbell. It was a mess, and it gave virtually no guidance. For nearly 300 years, courts had acknowledged a need for doctrine that would allow copying in some circumstances. There developed a widely accepted view that copying in certain types of undertakings-criticism, parody, book reviews, news reporting, political commentary, historical works, scholarly analyses-would likely be a fair use. But, with the exception of Joseph Story's spare, but well targeted, caution in 1841(fn4) that a fair use must not "diminish the profits, or supersede the objects, of the original work,"(fn5) courts had failed to explain how to distinguish between copying that infringes and copying that is fair use. Decisions were made from the gut, without any real explanation.
The confusion in the law was due, in no small part, to careless utterances by the High Court. The Court needlessly floated a number of unhelpful, distracting, counterproductive propositions, which had no bearing on the outcome of the particular case and have caused no end of confusion and harm.
First, in Sony Corp. of America v. Universal City Studios, Inc.,(fn6) in gratuitous dictum, the Supreme Court declared that "every commercial use of copyrighted material is presumptively" an unfair use.(fn7) This statement played no role in the decision. What is more, it was incomprehensible. Types of enterprise in which fair use are conventionally found-news reporting and analysis, historical and biographical studies, reviews of books, theater, and film, as well as parody-are conventionally done commercially for profit. The notion that commercial uses were presumptively not fair uses plagued fair use analysis until at last it was blunted by Campbell.
In Harper and Row, Publishers, Inc. v. Nation Enterprises,(fn8) the Supreme Court rejected The Nation's claim that its taking of President Ford's explanation of the Nixon pardon was fair use because it was so newsworthy. Public interest in the author's writing would not justify disregard of the author's copyright. This was altogether valid. Otherwise, an author's success in writing an important book would be the author's undoing. And, as for harm, the Court explained that by scooping the "heart of [Ford's] book,"(fn9) The Nation had usurped the "important marketable subsidiary right" of first publication.(fn10) Had the Court stopped there, its reasoning would have fit into a useful framework for analysis of future fair use disputes. Unfortunately, the opinion aired numerous distracting aphorisms-many of them misguided.
(a) For starters, the Court asserted that quotation from an unpublished work tends "to negate the defense of fair use."(fn11) To the extent that proposition could be correct for Harper and Row's facts, where the unauthorized publication scooped the imminent initial publication, the proposition would be at least equally incorrect in other circumstances, such as where the purpose of the copying is to reveal important facts that the rights holder hopes to conceal. If, for example, The Nation had discovered secret documents establishing an illicit bargain between Nixon and Ford-if, for example, Nixon had demanded a pardon as a condition of his resignation in Ford's favor, and Ford had promised to give it-the Court might have said, "[t]he unpublished nature of the original strongly supports a finding of fair use."
Copyright's justification lies in its aim to stimulate creativity for the enrichment of public knowledge. Exchange of letters establishing corrupt bargains is not stimulated by the authors' hope of publishing them for profit. Quoting such letters to reveal what their contents tell about their authors serves copyright's primary goal of enriching public knowledge-without derogating from the parallel goal of providing authors with financial inducements to create. Fortunately, seven years later, Congress passed a special amendment to § 107, rejecting this privileging of unpublished works.(fn12)
(b) Second, the Harper and Row Court said there is "a greater need to disseminate factual works than works of fiction or fantasy."(fn13) This served no role in supporting the Court's decision. It has been widely understood to mean that the defense of fair use is favored when quotation is from a factual work. To me that makes no sense. To be sure, there is often a need to test the accuracy of propositions advanced in factual works, and quotation for such purposes may well be justified as fair use. But that is a very different proposition from allowing a second writer to copy wholesale from an earlier writer's treatment of the same subject-just because the subject is factual.
(c) Finally-and most harmful of all-in reference to the fact that The Nation had gotten access through a "purloined manuscript,"(fn14) the Court erroneously characterized fair use as an equitable doctrine(fn15) and disastrously declared that "[f]air use presupposes 'good faith' and 'fair dealing.'"(fn16) I will return to this issue later on.
Random distribution of cases from the District Court Clerk's Office sent me an amazing stream of fascinating fair use cases-suits by J. D. Salinger(fn17) and the heirs of L. Ron Hubbard(fn18) and Igor Stravinsky(fn19) to enjoin biographical writings that quoted from their private documents, and the suit brought by publishers of scholarly journals against Texaco to enjoin Texaco's geologists from photocopying scientific articles for their files.(fn20) For the decisions of these cases, the precedents offered scant guidance, and the guidance they gave was largely bad guidance. My decisions scored a sixty-seven percent reversal rate. I thought at the time that it had been exciting to find myself at the cutting edge of the law, even if in the role of the salami.
II. CAMPBELL
The Campbell decision in 1994 brought to an end fair use's odyssey of bad piloting and aimless drift. In place of a laundry list of meaningless or harmful aphorisms, the Court undertook at last to explain fair use in terms of the goals of copyright-protection of the author's exclusive entitlement to publish for profit, for the enrichment of public knowledge. Campbell recognized that, at least in some circumstances, those who quote from the writings of prior authors are also authors, and that quotation from prior writings for new purposes can also enrich public knowledge. To this end, Campbell's explanation allowed copying in order to advance different understandings or achieve new objectives-so long as the copying is achieved without competing significantly with the author's exclusive entitlements.
In my view, the most important among Campbell's contributions are the following:* It taught us not to search for answers in the words of the statute, as Congress made clear in its report that it was not undertaking to tell us what fair use is. Its intention was only to acknowledge this important doctrine in the statute, summarizing what courts had said and leaving further development to the courts that created the doctrine.(fn21) Congress would have been wiser and would have invited less occasion for misunderstanding had it written simply that fair use is not infringement. That is all it meant.* Campbell re-emphasized Story's focus on whether the secondary work diminishes the profits and "'supersede[s] the objects' of the original."(fn22) * It rejected the utility of bright-line rules-especially the misconceived bias against commercial uses.(fn23)* It cast doubt on the continuing validity of Harper and Row's assertion of a good faith requirement.(fn24)* It cautioned courts not to be too ready (in cases raising a non-frivolous contention of fair use) to enjoin the work found to infringe.(fn25) A work that includes infringing copying may at the same time contain much that is non-infringing and valuable- including some fair use copying, and other copying that does not infringe because it communicates facts and ideas, which copyright does not protect. Copyright is a commercial doctrine-not a "moral right," as the author's right is conceived in Europe. Copyright's goal is to guarantee authors reasonable...
