POSSIBLE FUTURES OF FAIR USE
Pamela Samuelson(fn*)
Abstract: This Article celebrates the twenty-one-year majority status of Campbell v. Acuff-Rose Music, Inc. Campbell has unquestionably had transformative impacts on the doctrine of fair use in U.S. copyright case law, making several significant contributions that go well beyond the Court's endorsement of the "transformative" nature of a use as tipping in favor of fairness. Several notable cases have built upon the analytical foundation established in Campbell.
This Article also considers possible futures of fair use. What will fair use look like twenty-one years from now? Will it stay much as it is right now, or will it change, and if so, how? Some critics think that fair use has gone too far and are urging a return to a more restrictive scope for the doctrine. This Article considers and responds to various critiques of the present state of fair use law, including whether fair use is consistent with international treaty obligations. This Article concludes that fair use will survive these critiques and will continue to evolve to provide a useful mechanism for balancing the interests of authors and other rights holders, on the one hand, and subsequent authors and other users of copyrighted works, on the other hand. It discusses some new horizons that commentators have imagined for fair use to address certain problems that beset copyright law today. Of the possible futures of fair use, that which would preserve the status quo and expand fair use into new horizons is the one most likely to occur and most to be desired.
INTRODUCTION ................................................................................ 816
I. CAMPBELL AS A TRANSFORMATIVE FAIR USE CASE ...... 817
A. Campbell's Contributions Go Beyond Transformativeness .............................................................. 818
B. A Review of the Post-Campbell Case Law .......................... 825
II. HAS FAIR USE GONE TOO FAR? ............................................. 839
A. Faulting Sony for the Whole Work Fair Use Cases .............. 840
B. Transformation of Expression Cases .................................... 843
C. Different Purpose Fair Uses ................................................. 845
D. Fair Use Is Consistent with International Treaty Obligations ........................................................................... 850
III. NEW HORIZONS FOR FAIR USE .............................................. 853
A. Refining the Doctrine of Fair Use ........................................ 853
B. Fair Use and Contractual or Technical Restrictions ............. 859
C. Remedial Adjustments ......................................................... 862
CONCLUSION .................................................................................... 863
INTRODUCTION
Campbell v. Acuff-Rose Music, Inc.(fn1) has unquestionably had transformative impacts on the doctrine of fair use in the U.S. copyright case law.(fn2) These transformations, though widely acknowledged,(fn3) have not been universally acclaimed.(fn4) On the occasion of Campbell having attained its twenty-one-year majority status, it is fitting to consider the possible futures of fair use. What will fair use look like twenty-one years from now? Will it stay much as it is right now, with cases simply working out details within its current contours? Or has it gone too far, and will the pendulum swing back toward a more restrictive scope for the doctrine? If it has gone too far, in what ways should it be curtailed? Will some uses that today are free as fair uses be permitted in the future under an obligation to pay licensing fees for the uses? Or will fair use continue to expand? And in what new directions might it evolve?
I am here to celebrate the transformations that Campbell has wrought in fair use law and to defend the present state of fair use law from its critics. I am also here to share ideas about some new horizons that I and others have imagined for fair use to address certain problems that beset copyright law today, such as the enforceability of mass-market license restrictions that purport to override fair use and bypassing technical protection measures that impede the making of fair and other privileged uses of digital works.
As the scholarly papers presented at this symposium attest, Campbell has made several significant contributions to fair use law in the U.S. Part I of this Article discusses my view of these contributions, which go well beyond the Court's endorsement of the "transformative" nature of a use as tipping in favor of fairness. Part I also discusses several notable cases that have built upon the analytical foundation established in Campbell. Part II considers and responds to various critiques of the present state of fair use law. Campbell itself, interestingly, is not the target of the fair-use-has-gone-too-far critiques, but a number of its progeny are. The most serious charge leveled against the post-Campbell fair use case law is that fair use, under Campbell's influence, has put the United States out of compliance with its international treaty obligations. Part III expresses confidence that fair use will survive these critiques and will continue to evolve to provide a useful mechanism for balancing the interests of authors and other rights holders, on the one hand, and subsequent authors and other users of copyrighted works, on the other hand. Of the possible futures of fair use, that which would preserve the status quo and take fair use into new horizons is the one most likely to occur and most to be desired. Part III explores these new horizons.
I. CAMPBELL AS A TRANSFORMATIVE FAIR USE CASE
Campbell v. Acuff-Rose Music, Inc. was the most significant copyright decision of the twentieth century in terms of doctrinal developments of the law.(fn5) In Campbell, the Supreme Court overturned a lower court ruling that Luther Campbell's group, 2 Live Crew, made an unfair use of Roy Orbison's song "Pretty Woman" when recording a rap parody version of it.(fn6) Justice Souter wrote an eloquent opinion for a unanimous Court. More important than the eloquence was the substantial guidance the Court provided about how fair use cases should be analyzed. Many fair use decisions rendered in the past two decades have cited Campbell.(fn7) In addition, the law review commentary on Campbell has been voluminous.(fn8)
Section A reviews the many contributions-numbering, by my count, at least a dozen-that Campbell has made to fair use jurisprudence. Section B discusses the cases that embraced and built on these contributions.
A. Campbell's Contributions Go Beyond Transformativeness
The most notable and influential contributions of the Campbell decision have, of course, been, first, the Court's emphasis on the "transformative" nature of a defendant's use as weighing in favor of fair use and, second, its expansive definition of what constitutes a "transformative" use. (I will address these two landmark contributions at the end of this subsection.) Several others of Campbell's contributions to fair use jurisprudence tend to be overlooked or glossed over in discussions about the impact of that decision. Yet these less noticed aspects of Campbell have also reshaped how fair use cases are analyzed and deserve due attention. The remainder of this subsection reviews Justice Souter's contributions to fair use law, emphasizing first the less noted contributions and then returning to the transformativeness contributions.
Campbell was, for instance, influential in its abjuring the dual negative presumptions the Court had seemed to endorse in two earlier fair use decisions.(fn9) I count this as the third of Campbell's contributions to fair use law. In Sony of America v. Universal City Studios, Inc.,(fn10) the Court had directed lower courts to presume that a challenged use was unfair if it was commercial in nature and, further, to presume harm to the plaintiff's market when a defendant made commercial uses of the rights holder's work.(fn11) This dicta might have had a less powerful impact on subsequent cases-after all, Sony involved a private noncommercial use(fn12)-had the Supreme Court not a year later endorsed the dual negative presumptions in Harper and Row, Publishers, Inc. v. Nation Enterprises.(fn13) Harper and Row involved the publication of excerpts of President Ford's memoirs in an issue of The Nation that "scooped" the excerpts from a "purloined" manuscript; this harmed the market because Time magazine subsequently cancelled its contract to publish similar excerpts to whet the public's interest in the book.(fn14)
The Sixth Circuit in Campbell had invoked the dual negative presumptions in its ruling that Campbell's use of the song was unfair.(fn15) The Supreme Court, however, declared that the Sixth Circuit had misread Sony, which called for a "sensitive balancing of interests."(fn16) The commerciality of a defendant's purpose, opined Justice Souter in Campbell, is a factor to be considered and may, in some contexts, weigh against fair use.(fn17) But a commercial purpose must be considered in context, and it should be given less weight in transformative use cases because of the lower likelihood that such uses will supplant demand for the original.(fn18)
Although Campbell repudiated the dual presumptions in cases involving...
