If there has been one constant with fair use throughout the history of the doctrine, itâ€™s that no one can explain how to apply it in a consistent manner. Thatâ€™s not to say most donâ€™t have a rough sense of the purpose of fair useâ€”to permit the reasonable use of copyrighted material when doing so is consistent with the goals of copyright law itself. And itâ€™s also not to say merely that fair use is a challenging doctrineâ€”the law is filled with challenging doctrines. What it does mean is that the doctrine lacks a sufficiently concrete standard that would aid judges to reach determinations in a roughly consistent and predictable manner.
Justice Storyâ€™s 1841 decision in Folsom v. Marsh serves as the spiritual forebear of the modern doctrineâ€”the Copyright Actâ€™s set of factors courts must consider when determining fair use is drawn almost directly from Storyâ€™s opinion. Yet Story states from the outset the absence of any sort of standard, writing,
This is one of those intricate and embarrassing questions, arising in the administration of civil justice, in which it is not, from the peculiar nature and character of the controversy, easy to arrive at any satisfactory conclusion, or to lay down any general principles applicable to all cases.1Folsom v. Marsh.
Nevertheless, courts in the decades that followed would take on the challenge of distinguishing between infringement and fair use.
Beginning in the mid 1950s, as part of its overall work on copyright law revision, the US Copyright Office considered recognizing the court-developed doctrine of fair use in statute. But that meant it had to figure out a way to state it in a manner that courts could apply. And as Alan Latman noted in his 1958 study on Fair Use of Copyrighted Works for the Copyright Office, â€œ[F]air use is not a predictable area of copyright law.â€
The drafters of the 1976 Copyright Act did eventually settle on a formulation of fair useâ€”found in Section 107 of Title 17â€”but even then admitted the elusiveness of a clear standard. â€œAlthough the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged,â€ reads the House Report accompanying the 1976 Copyright Act.2H. Rep. 94-1476 (1976).
The next big shift in the fair use doctrine would come from the introduction of â€œtransformativenessâ€ by the Supreme Court in Campbell v Acuff-Rose Music.3510 US 569 (1994). There, the Court said that the central inquiry of the first fair use factor is to consider whether and to what extent the putative fair use â€œadds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.â€ The Supreme Court pulled this idea of transformativeness from a 1990 article by Judge Pierre Leval, Toward a Fair Use Standard.4103 Harv. L. Rev. 1105 (1990). Leval was motivated to write the article after the Second Circuit reversed two of his fair use decisions. Like Justice Story one hundred and fifty years before, Leval began by noting the absence of guidance in the doctrine. He wrote, â€œ[T]hroughout the development of the fair use doctrine, courts had failed to fashion a set of governing principles or values.â€Â Leval intended transformativeness to play the role of fair use standard.
Following Campbellâ€™s endorsement of transformativeness, lower courts began to place more of their emphasis on that concept. In his article Making Sense of Fair Use, law professor Neil Netanel observed that by 2005, transformativeness was â€œoverwhelminglyâ€ driving fair use analysis in courts, and the result he saw was that â€œin fundamental ways, fair use is a different doctrine today than it was ten or twenty years ago.â€ 5Neil Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715 (2011).
But widespread adoption does not necessarily lead to progress, despite the best intentions of Judge Leval and the Supreme Court. Evidence that transformativeness may not provide the long-needed governing principle came from the Second Circuitâ€™s 2013 Cariou v. Prince decision.6714 F.3d 694 (2013); see also Cariou v Prince: Transforming the Fair Use Inquiry. The courtâ€™s overly expansive conception of transformativeness drew sharp criticism from many observers. One wrote, â€œCariou v. Prince confirms what academics have long noted and practitioners recognized: that the ascendancy of transformative use analysis has coincided with and become a justification for a judicial tilt toward fair use, but has failed to bring greater clarity and predictability to fair use decisions and has instead become an empty buzz-word.â€ 7Kim J. Landsman, Does Cariou v. Prince Represent the Apogee or Burn-Out of Transformativeness in Fair Use Jurisprudence? A Plea for a Neo-Traditional Approach, 24 Fordham IP, Media, and Entertainment LJ 320 (2014); see also Patricia Cohen, “Photographers Band Together to Protect Work in ‘Fair Use’ Cases“, New York Times, Feb. 21, 2014; Cindy Villanueva, “Cariou v. Prince: A Controversial Redefining of the Distinction between Parody and Satire“, National Law Review, March 2, 2015. Perhaps the most potent criticism came from a sister Circuit. In Kienitz v Sconnie Nation, Judge Easterbrook, writing for the Seventh Circuit, rejected efforts to consider whether the allegedly infringing work at issue was transformative, saying, â€œThatâ€™s not one of the statutory factors, though the Supreme Court mentioned it in Campbell.â€8766 F. 3d 756 (7th Cir. 2014). Easterbrook went on to reference the Cariou decision, saying, â€œThe Second Circuit has run with the suggestion and concluded that â€˜transformative useâ€™ is enough to bring a modified copy within the scope of Â§107,â€ but ultimately said, â€œWeâ€™re skeptical of Cariouâ€™s approach.â€
Within a few years, even the Second Circuit seemed to be shying away from its decision in Cariou. In TCA Television Corp. v. McCollum, it admitted that the Cariou decision â€œmight be thought to represent the high-water mark of our courtâ€™s recognition of transformative worksâ€ and recognized that â€œit has drawn some criticism,â€ citing both Kienitz and Nimmerâ€™s treatise, which was also critical of the decision. The panel went on to say, â€œWe need not defend Cariou here, however, becauseâ€¦even scrupulous adherence to that decision does not permit defendantsâ€™ useâ€¦to be held transformative.â€ And just yesterday, in his concurrence in Fox News Network v TVEyes, Judge Kaplan observed,
It…is not at all surprising that attempts by alleged infringers to characterize their uses of copyrighted works as “transformative” have become a key battleground in copyright litigation, particularly as technological advances provide ever-new contexts in which the uncompensated use of copyrighted works is very attractive. And the law governing such controversies often is far from clear. As noted commentators have observed, courts “appear to label a use ‘not transformative’ as a shorthand for ‘not fair,’ and correlatively ‘transformative’ for ‘fair.’ Such a strategy empties the term of meaning.” Indeed…some of our own decisions on the issue are at least in tension with one another.
But until a new standard emerges, or â€œtransformativenessâ€ is given more structure, the buzzword-masquerading-as-a-standard continues to result in wildly divergent decisions. Just one recent example: at the beginning of this year, the Eastern District Court of Virginia held in one case that â€œdefendantâ€™s use of two of plaintiffâ€™s photographs of famous musicians to accompany online articles about those musiciansâ€™ political views constitutes fair use of the photographs.â€9Memorandum Opinion, Philpot v. Media Research Center Inc., 1:17-CV-822, Docket #36, Jan. 8, 2018. In that case, the defendant had not altered the actual photos in any way, and the photographs did not relate to defendantâ€™s articles that they accompanied other than for the fact that the subjects in the photographs were the individuals (Kenny Chesney and Kid Rock) being discussed in the articles. Nevertheless, the court felt comfortable concluding that the use was transformative, saying that defendantâ€™s purpose in using the photographs, â€œto identify the celebrities as pro-life advocates or conservative Senate candidatesâ€, was different from plaintiffâ€™s purpose in taking the photographs, â€œto depict the musicians in concert.â€ Even many ardent supporters of the broadest application of fair use would agree that the court got it wrong here, but when all you have to go on is an open-ended inquiry using the vague concept of transformativeness, itâ€™s difficult to place the blame on the application of that concept.
Fair use is subjective, and it would not be served well by rigid, bright-line rules. But still, it would benefit from having some sort of standard to connect its overall principles to the statutory factors in a way that would ensure that Judge A and Judge B, both human individuals with their own sets of beliefs, idiosyncracies, foibles, and imperfect knowledge, reach roughly the same results given the same set of facts. Judge Levalâ€”and the Supreme Courtâ€”had hoped that transformativeness would accomplish that goal, but after two decades, it’s difficult to make that case. At the very least, it doesn’t seem to be the silver bullet they had hoped for. At the very worst, it is a vague and ill-defined concept that courts have applied in an incommensurate fashion. Additionally, judges are told that the more transformative they can say a use is, the less weight they can accord the other statutory factors. This is bad for copyright owners, who may find their exclusive rights negated with little noticeâ€”but itâ€™s also not great for critics, commentators, news reporters, teachers, scholars, or researchers, who may find the lack of clear boundaries between what is and is not permitted a disincentive to engage in what would otherwise be a fair use.
|↑1||Folsom v. Marsh.|
|↑2||H. Rep. 94-1476 (1976).|
|↑3||510 US 569 (1994).|
|↑4||103 Harv. L. Rev. 1105 (1990).|
|↑5||Neil Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715 (2011).|
|↑6||714 F.3d 694 (2013); see also Cariou v Prince: Transforming the Fair Use Inquiry.|
|↑7||Kim J. Landsman, Does Cariou v. Prince Represent the Apogee or Burn-Out of Transformativeness in Fair Use Jurisprudence? A Plea for a Neo-Traditional Approach, 24 Fordham IP, Media, and Entertainment LJ 320 (2014); see also Patricia Cohen, “Photographers Band Together to Protect Work in ‘Fair Use’ Cases“, New York Times, Feb. 21, 2014; Cindy Villanueva, “Cariou v. Prince: A Controversial Redefining of the Distinction between Parody and Satire“, National Law Review, March 2, 2015.|
|↑8||766 F. 3d 756 (7th Cir. 2014).|
|↑9||Memorandum Opinion, Philpot v. Media Research Center Inc., 1:17-CV-822, Docket #36, Jan. 8, 2018.|