Fair Use: an Affirmative Defense?

• Publication year: 2021

FAIR USE: AN AFFIRMATIVE DEFENSE?

Lydia Pallas Loren(fn*)

Abstract: The Supreme Court's decision in Campbell v. Acuff-Rose Music, Inc. solidified the treatment of fair use as an affirmative defense. However, treating fair use as an affirmative defense shifts the burden to the defendant while in most fair use cases plaintiffs are able to easily prove a prima facie case of infringement. This Article identifies that, despite its decision in Campbell, the Supreme Court has not yet undertaken a thorough analysis of whether Congress intended fair use, as codified in Section 107 of the Copyright Act, to be treated as an affirmative defense. In fact, as explored in this Article, the legislative history cuts against viewing fair use as an affirmative defense, and the legislative history explicitly confirms what the statute clearly states: Congress did not intend fair use to be an affirmative defense; a defense, yes, but not an affirmative defense. The negative consequences of labeling fair use an affirmative defense support shifting back to what Congress intended. Fair use should not be seen as an affirmative defense, but should instead be treated as a defense that shapes the scope of a copyright owner's rights.

INTRODUCTION ................................................................................ 686

I. BACKGROUND ........................................................................... 688

A. The Prima Facie Case of Infringement: An Easy Burden ....... 688

B. Defense Versus Affirmative Defense ...................................... 690

II. THE SUPREME COURT AND THE EVOLUTION OF FAIR USE INTO AN "AFFIRMATIVE DEFENSE" ............................. 692

A. Campbell v. Acuff-Rose Music, Inc. . ....................................... 692

B. Harper and Row, Publishers, Inc. v. Nation Enterprises ........... 694

C. Sony Corporation of America v. Universal City Studios, Inc............................................................................................ 695

III. THE TEXT AND LEGISLATIVE HISTORY OF THE 1976 ACT ................................................................................................ 696

A. Statutory Language .................................................................. 697

B. Legislative History of the 1976 Act ........................................ 699

C. Later Legislative History ......................................................... 703

IV. CONSEQUENCES OF TREATING FAIR USE AS AN AFFIRMATIVE DEFENSE .......................................................... 705

A. Pleading ................................................................................... 705

B. Burdens of Proof ...................................................................... 706

C. Amplifying the Burden on Speech .......................................... 709

V. TREATING FAIR USE DIFFERENTLY-AS A DEFENSE ...... 710

CONCLUSION .................................................................................... 712

INTRODUCTION

No one doubts that the fair use doctrine is a critically important part of U.S. copyright law.(fn1) As the Supreme Court described in Campbell v. Acuff-Rose Music, Inc.,(fn2) fair use provides a guarantee of "breathing space within the confines of copyright."(fn3) If the doctrine holds this critical place in the scheme of copyright, is the Supreme Court correct to label fair use an "affirmative defense"?

In Campbell the Supreme Court not only repeated the declaration it had first made less than ten years earlier, that fair use is an affirmative defense,(fn4) it went further to comment on the burden that it thought followed from that label. Specifically, in addressing the fourth factor courts should consider when evaluating whether a use is fair-the effect of the putative fair use on "the potential market for or value of the copyrighted work"(fn5)-the Court stated: "Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets."(fn6) In this sentence the Supreme Court not only cemented the label "affirmative defense," it also made clear the defendant should shoulder the "burden of demonstrating fair use."(fn7)

Much has been written concerning the nature of fair use: Is it a right, or merely a privilege?(fn8) Some might claim that my focus here is on a much more mundane and procedural question:(fn9) Did Congress intend for courts to treat fair use as an affirmative defense, or was the fair use inquiry meant to be part of the prima facie inquiry into the question of infringement? Indeed, for many fair use cases, the issue of the burden of proof has not been a central component of the basis for the decision. The power of the procedural argument, however, may take on increased importance as courts begin more frequently to use the allocation of the burden as a reason to deny defendants' assertions of fair use.(fn10) More fundamentally, "[s]ubstantive rights . . . are worth no more than the procedural mechanisms available for their realization and protection."(fn11)

Part I of this Article provides background on the current approach to the prima facie case of copyright infringement and the difference between a defense and an affirmative defense. Part II explores the Supreme Court's statements concerning the nature of fair use as an affirmative defense, taking the Court's cases in reverse chronological order. This section shows that the Court has not yet undertaken a thorough analysis of whether Congress intended fair use, as codified in Section 107 of the Copyright Act, to be treated as an affirmative defense. After identifying the statutory language that cuts against treating fair use as an affirmative defense, Part III then turns to the legislative history of the 1976 Act. It describes the specific legislative history relied on by the Supreme Court as well as other statements in the legislative history concerning the nature of the fair use doctrine, including language contained in the final House and Senate Reports. The legislative history explicitly confirms what the statute clearly states: Congress did not intend fair use to be an affirmative defense-a defense, yes, but not an affirmative defense. Part IV explores some of the consequences of treating fair use as an affirmative defense and some of the legal maneuvers employed by defendants and the courts to soften the more serious problems. Finally, Part V argues that the Supreme Court should revisit its use of the affirmative defense label and should conclude that fair use is not an affirmative defense but is a mere defense that shapes the scope of a copyright owner's rights.

I. BACKGROUND

A. The Prima Facie Case of Infringement: An Easy Burden

Treating fair use as an affirmative defense shifts the burden to the defendant with little needed from the plaintiff to demonstrate a prima facie case of infringement, thus opening the door to the wide range of remedies permissible under the Copyright Act.(fn12) For example, in a case alleging infringement of the reproduction right, the plaintiff must prove only ownership of a valid copyright (often demonstrated by presentation of the copyright registration certificate)(fn13) and "copying of constituent elements of the work that are original."(fn14) Proving this actionable copying typically has two components. First, the plaintiff must establish actual copying-that the defendant copied from the plaintiff rather than having independently created a similar work. In fair use cases, this first component of actionable copying is almost always undisputed. The second component of actionable copying requires the plaintiff to establish that "the copying amounts to an improper or unlawful appropriation."(fn15) This element is also, often, quite easily demonstrated.

What copying amounts to an improper or unlawful appropriation is sometimes phrased as a showing that the defendant's work has "'substantial similarity' to protected expression in the earlier work."(fn16) To prove substantial similarity, a plaintiff must show "(i) that it was protected expression in the earlier work that was copied and (ii) that the amount that was copied is 'more than de minimis.'"(fn17) To constitute "protected expression" it must satisfy the requirement of originality. However, the originality standard is exceedingly low, requiring only a "modicum of creativity," and again is often easily shown.(fn18)

The remaining criterion of the prima facie case of infringement requires only an evaluation of what the defendant copied: Was too much, i.e. more than a de minimis amount, of the plaintiff's copyrighted expression copied? The prima facie case does not require any examination of the reason that the defendant copied the expression or any proof of harm to the plaintiff, which makes the determination of how much copying is too much an abstract inquiry with no reference point. However, factors that help anchor the determination of how much is too much copying are embedded in the fair use inquiry. For example, when considering the fair use question, courts are directed to consider the purpose the copier seeks to achieve and the harm such copying causes the copyright owner, both helpful considerations when determining if defendant's copying was improper.(fn19) Indeed, fair use injects a much needed concept of harm to the copyright owner(fn20) to...