Fair use is a doctrine in U.S. copyright law that allows for certain uses copyrighted material without permission from the right holder. The actual legal doctrine is complex, and still evolving somewhat. A historical perspective on how, and why, fair use developed over the years can help in understanding its place in the modern world and how it should be applied.
The Structure of Fair Use Began in the Common Law.
Although fair use is now codified as part of copyright law, it began as a common law doctrine. In fact, English Courts recognized something akin to fair use under the Statute of Anne, the first copyright law established in 1710. These early copyright cases spoke of fair abridgment rather than fair use.
Folsom v. Marsh was one of the seminal, early fair use cases in the U.S. Decided by Justice Story, this case helped lay out the early doctrine of fair use, and has been frequently cited by both other cases and by academic works. That case centered on two books dealing with George Washington, where the later book borrowed substantially from the first one. In the end, the court found that the use was not a fair one and found an infringement. But in the process, it laid out factors that could be used to determine when a use was fair. For instance, this case found that the publication of private letters was sometimes appropriate even though the writer held a copyright in them. More generally, Justice Story said, “we must often … look to 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.”
As an example, Courts have protected parodies long before the fair use doctrine became codified. For instance, Bloom & Hamlin v. Nixon from 1903 centered on the song “Sammy”, which was normally performed as part of stage production. The defendants blatantly mimicked parts of the song, though they did so largely as a way to mimic the most famous performer of that song at that time. The court found for the defendants, saying “[s]urely a parody would not infringe the copyright of the work parodied, merely because a few lines of the original might be textually reproduced.”
Congress Codified Fair Use in 1976
The 1976 Copyright Act made numerous changes to copyright law in the United States. Among others, it brought unpublished works under federal copyright and generally preempted state copyright statutes. Significantly for this article, it codified fair use into statute at 17 U.S.C § 107. Currently, that section of the statute reads:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Beginnings of the Digital Era
Fair use became more significant with the rise of the digital era. In the past, it was arguably difficult for an individual to even violate copyright law in a meaningful way. Most uses of a copyright protected work which could be made by an individual without access to special equipment such as a printing press would have been entirely unregulated.
With the rise of the digital era, that changed. It became simpler for individuals to distribute copies of protected works, often referred to as piracy. But it also became easier for individuals and businesses to create and then distribute derivative works. Some of these activities, such as piracy, were clear violations of copyright law. But others, such as many of the derivative works, could exist legally only because of the fair use doctrine.
Some businesses relied heavily on the fair use doctrine and faced new questions as technology changed business practices and created new businesses. For instance, the Ninth Circuit used fair use to protect reverse engineering under some circumstances. Accolade was a software company that had reverse engineered parts of the Sega Genesis in order to produce games that were compatible with that system. Sega sued claiming both trademark and copyright violation. The Ninth Circuit found that their reverse engineering and disassembly of Sega’s code in order to be compatible with the Genesis was protected by fair use. In particular, that court said “when the person seeking the understanding has a legitimate reason for doing so and when no other means of access to the unprotected elements exists, such disassembly is as a matter of law a fair use of the copyrighted work.”
Google has built different parts of its business around fair use. Google image search for instance was swiftly challenged on copyright grounds because of its use of thumbnail images from other websites. Perfect 10, a purveyor of adult content, sued google over its image search. Emphasizing the transformative nature of Google’s use and the benefit to the public, the 9th Circuit found that Google’s use of the thumb nail images was a fair use. Without the fair use doctrine, image search features that span the web broadly would likely be impossible. Similarly, the Google Books program relies on fair use for its existence.
Fair Use as a Right and an Affirmative Defense
The Supreme Court stated definitively in 1985 that Fair Use was structured as an affirmative defense. This means, among other things, that a defendant wishing to claim fair use bears the burden of proof. However, many judges and scholars believe that it is an affirmative defense that must exist in order to allow copyright to be Constitutional. This view is not absolutely accepted and remains somewhat controversial. Some commentators have said that fair use in its current incarnation is a technical infringement which is excused by the law. Still, the Supreme Court has made statements which imply that free expression requires something like fair use and other courts have gone further.
For instance, the 11th Circuit in a significant case dealing with fair use stated “[h]ad fair use not been recognized as a right under the 1976 Act, the statutory abandonment of publication as a condition of copyright that had existed for over 200 years would have jeopardized the constitutionality of the new Act because there would be no statutory guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.” In a footnote, Judge Birch expanded on that saying “the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes.”
Other Modern Controversies
From a practical standpoint, one of the biggest controversies surrounding fair use is that the contours of the doctrine are painfully ambiguous. This makes determining whether any particular use is fair or not difficult and uncertain. Case law has not substantially clarified the vague statute. In a commentary, Judge Pierre N. Leval noted that “[r]eversal and divided courts are commonplace” and that the first two fair use cases two come before the Supreme Court resulted in 4-4 splits. Although this issue has been noted by significant scholars, it is unlikely to be resolved soon.
Another modern concern revolves around the interactions between fair use and the Digital Millennium Copyright Act. The Digital Millennium Copyright Act created a system that allows for “notice and takedown” of copyright materials on the Internet. The system is meant to allow copyright owners to swiftly have their materials removed from sites that host user provided content where the user uploaded material they were not authorize to upload. However, copyright owners have at times used the system to remove material that should have been protected by fair use or where the removal is otherwise inappropriate. The Ninth Circuit found that under the DMCA, a copyright owner must take fair use into account before they can properly invoke the DMCA, but there is no requirement that they make the right decision. This has caused some controversy, and commentators have recommended adjustments to the way fair use is handled under the DMCA. Many of these proposed solutions would require major changes to the law.
The Fair Use doctrine has been vital to U.S. copyright law. Arguably, it is necessary to ensure that copyright law remains compliant with the First Amendment. It has helped protect certain new technological products which would likely be impossible without it such as image search and some forms of reverse engineering. As technology continues to advance, making copying even easier and creating more forms of creativity not yet fully conceived, Fair Use and related doctrines are likely to become even more important. But these new applications of Fair Use are likely to create additional legal controversies and create new questions to be resolved. An understanding of the history of fair use can help in understanding how those controversies arose and the best way to resolve them.
To Learn More About Fair Use
- Intellectual Property: Law & The Information Society Cases and Materials is a Coursebook designed for use in an Intellectual Property class. It is available for free as a PDF. It covers Fair Use in Chapter 13.
- The EFF provides a Legal Guide for Bloggers which briefly covers fair use considerations. As the EFF itself points out, this is a brief overview and no substitute for competent legal advice.
- The Public Domain by James Boyle discusses Fair Use repeatedly, but particularly in the section “The Holes Matter as Much as the Cheese”
- Bound by Law is a Comic Book by Keith Aoki, James Boyle, and Jennifer Jenkins that discusses Fair Use extensively, primarily in the context of making a documentary film.
- The Digital Media Law Project has a Primer on Copyright Liability and Fair Use.
This article is meant to provide information on a historical topic of law. Although I am a licensed attorney in the State of Nevada, this article is not meant to provide legal advice or create an attorney-client relationship. If you need legal advice, you should seek the aid of an attorney licensed in your jurisdiction. All information is provided “as-is”.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). It is worth noting that even the Statute of Anne had predecessors that laid the groundwork for copyright. But those are far beyond the scope of this post and the Statute of Anne is generally recognized as the first true copyright act in the English or American Traditions. See Isabella Alexander, All Change for the Digital Economy: Copyright and Business Models in the Early Eighteenth Century, 25 Berk. Tech. L. J. 1351, 1356 – 1362 (2010).
 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1105 (1990); see also Gyles v. Wilcox, 26 Eng. Rep. 489, 2 Atk. 141 (1740).
 “But, consistently with this right, the persons to whom they are addressed, may have, nay, must by implication, possess, the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them…” Folsom v. Marsh, 9 F.Cas. 342, 346 (C.C.D. Mass. 1841). This of course has significant implications for matters such as copyrighting a cease-and-desist letter.
 Folsom, 9 F. Cas at 348.
 Bloom & Hamlin v. Nixon, 125 F. 977, 978 (C.C.E.D. Pa. 1903).
 The law around reverse engineering is complicated and has grown more rather than less complicated since this case. For instance, the anti-circumvention provisions in the DMCA for instance have an impact on the ability to reverse engineer or even repair certain forms of technology. See 17 U.S.C. 1201. It may also implicate contract law if there was a license involved with acquiring the software.
 Sega Enterprises Ltd. V. Accodlade, Inc., 977 F.2d 1510, 1514 (9th Cir. 1992).
 Perfect 10 v. Google, 508 F.3d 1146, 1168 (2007).
 See generally Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).
 Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 136 (2011); see also Marc J. Randazza, Lenz v. Universal: A Call to Reform Section 512(f) of the DMCA and to Strengthen Fair Use, 18 Vand. J. Ent. & Tech L. 101, 118 (2016).
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).
 Id. at 1261 n. 3.
 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1106 (1990).
 See generally David Nimmer, “Fairest of Them All” and Other Fairy Tales of Fair Use, L. & Contemp. Probs. 264 (2000).
 Leval, supra note 17 at 1106-07.
 See Timothy A Wiseman, Limiting Innovation Through Willful Blindness, 14 Nev. L. J. 210, 211-214 (2013). To be clear, the DMCA also has other impacts on copyright law, but it is the notice and takedown provision which is relevant here.
 Lenz v. Universal Music Corp., 80 F.3d 1126, 1129 (9th Cir. 2015).
 Of course, there are other controversies around the DMCA. For instance, many content owners believe it is far too difficult to police their content and suggest that more of the burden should be placed on online service providers. There are also questions around what constitutes red flag knowledge under the DMCA and how it interacts with willful blindness. These other controversies are beyond the scope of this article.