The Fair Use Doctrine Revisited: Part Two in a Three-Part Series of Columns

Posted in: IP Law

On January 28, the Judiciary Committee of the U.S. House of Representatives heard from several witnesses about the fair use doctrine of copyright law. The witnesses presented arguments for and against legislation changing the doctrine. In the first of this series of columns, I described the fair use doctrine as it currently is defined in the Copyright Act and interpreted by courts.

In this column, I will summarize the various perspectives presented at the Judiciary Committee hearing. In a subsequent column, I will argue that, if anything, Congress should strengthen the doctrine of fair use to encourage creativity and innovation.

The Committee heard from five witnesses during the January 28 hearing: Professor Peter Jaszi, Director of the Glushko-Samuelson Intellectual Property Clinic at American University Washington College of Law; Professor June Besek, Executive Director of Kernochan Center for Law, Media and the Arts at Columbia Law School; Ms. Naomi Novik, author and co-founder of Organization for Transformative Works; Mr. David Lowery, singer/songwriter and lecturer at the Terry College of Business at the University of Georgia; and Mr. Kurt Wimmer, General Counsel for the Newspaper Association of America.

Testimony of Peter Jaszi

Professor Peter Jaszi testified that, in his opinion, fair use does not need legislative “reform” so much as “certain kinds of legislative support in years to come—especially relief from the operation of other statutory provisions (such as the current law of statutory damages) that have the unintended consequence of discouraging its legitimate exercise.” In support of his position, Professor Jaszi made four points:

  • Citizens’ ability to make socially and economically positive uses of copyrighted materials without permission is a positive right, connected to the First Amendment right to freedom of expression.
  • Courts’ evolving interpretation of the fair use doctrine, including the greater emphasis on the inquiry whether a work is transformative and the consideration of factors supplementing the four enumerated by statute, support the conclusion that the doctrine is serving its intended purpose.
  • While critics argue that the doctrine is too vague and thus unpredictable, lawyers seem to have relatively little difficulty predicting likely outcomes in most situations where precedents may apply directly or by logical extension.
  • The doctrine of fair use does not need legislative change, as courts have developed a robust “unified field theory” of fair use that is already suitable for adjudicating questions of digital use and other foreseeable issues presented by technological advances. Any legislative change could potentially disrupt the accrual of precedents and effectively weaken the doctrine rather than

He concluded that while he strongly recommended that Congress not overhaul the doctrine of fair use, there are some limited aspects of the doctrine that could stand improvement and revision. Professor Jaszi suggested that if Congress insists on making legislative changes, it should:

  • Take measures to prevent private parties from contractually eliminating a consumer’s right to fair use, as in adhesion contracts (such as terms of service offered to consumers on a take-it-or-leave-it basis).
  • Update the notice-and-takedown provisions that currently incentivize Internet Service Providers (ISPs) to remove allegedly infringing content without regard to any consideration whether it actually infringes or constitutes legitimate fair use.
  • Eliminate statutory damages in all actions for non-willful infringement brought against non-commercial users.

Testimony of June Besek

Professor June Besek testified that in her opinion, the doctrine of fair use has expanded significantly and needs to be reined in through legislative action. She cited as an example that until recently, the copying of an entire work would not constitute fair use. However, the Second Circuit in Authors Guild v. Google held that Google’s scanning of entire copyrighted works and putting them online in a restricted searchable format constituted sufficiently “transformative purpose” to fall within the scope of fair use.

Besek pointed to the increasing weight given to the “transformative use” inquiry as part of the reason for the growth of fair use. First introduced by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc., “transformative use” was originally one aspect of the first factor—the character and nature of the allegedly infringing use—to be balanced with the other three factors outlined in the Copyright Act.

According to Besek, “[p]rior to Campbell, fair use cases involving transformative (or productive) use were premised on changes made to the subject work itself: annotating a work, analyzing or critiquing it, creating a parody, and so on. Campbell introduced the notion that a work could be transformative if it does not “merely supersede” the original work but instead “add[s] something new, with a further purpose or a different character, altering the first with new expression, meaning or message.” However, Besek pointed out that courts have taken concept of “transformative use” and run with it. She argued that post-Campbell decisions have expanded “transformative use” to encompass “not only changes to the substance of a work, but also changes to how the work is used,” even in cases where, although the purpose of the use is different, no new work is actually created at all. Thus was born the notion of fair use through transformative purpose, or “functional transformation.”

Besek argued that recognizing functional transformation as a means to fair use departs significantly from the original intent of the doctrine in copyright law. She highlighted several cases in which courts have eschewed the enumerated factors of fair use in favor of a mere finding of transformative use. Besek also pointed to cases in which the court seems to have conflated transformative works (which can be, under the current system, fair use) and derivative works (which are, by definition, within the copyright of the original creator). Finally, she posited that the expansive view of fair use that U.S. courts are currently taking may violate international treaties to which the United States is a party, including The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention, and the WIPO Copyright Treaty.

Despite her criticism, however, Besek stopped short of calling for the legislative to strictly prescribe what constitutes fair use, instead praising the value of having judges interpret and apply the law to specific factual situations. She called upon the legislature merely to clarify the intended scope of fair use and thereby correct what she perceived as an overly expansive interpretation by judges.

Testimony of Naomi Novik

Author and co-founder of Organization for Transformative Works Naomi Novik testified from the perspective of an author—someone whose works both originated from the fair use of copyrighted material and have been used fairly by others in subsequent works.

She related her own personal journey as a writer and the practical implications of restricting or eliminating the doctrine of fair use. She argued that for many artists and creators, obtaining a license to use copyrighted materials at best is unfeasible, and at worst actually stifles creativity and transformation.

Novik asks Congress not to weaken the doctrine of fair use, but if anything, to facilitate its exercise. Among her suggestions to this end is to establish protections for fair users against frivolous lawsuit threats by copyright holders, as many copyright holders have significantly deeper pockets than those who seek to fairly use their works, and many authors do not have the resources to defend a lawsuit. She also suggests that Congress consider reducing damages for infringement when the infringing party did so with the good faith belief that the use was fair.

Testimony of David Lowery

Singer/songwriter and lecturer David Lowery testified primarily on the effects of fair use and copyright as it pertains to the music industry. He described the current state of copyright law as working exactly as it should and asks Congress not to intervene.

In support of his argument, Lowery provided two examples. First, he described the process by which artists seek a license to sample or remix a portion of a copyrighted work. Typically, artists will seek a license agreement from the copyright holder, and if they cannot reach an agreement, the artist will create an entirely new mix. Both possibilities serve the purposes of copyright: either the holder gets paid for the use of his or her creation, or an entirely new work is created. Lowery argued that the expansion of fair use would upset this balance and permit “freeloaders” to benefit unfairly from the creations of others.

Second, Lowery described the difference between websites that publish song lyrics with a license from the copyright holders and those that do not. He pointed out that both types of sites exist simultaneously, and one fairly compensates the copyright holder, while the other merely benefits from the creations of other people—essentially freeloading. He argued that even sites providing services like explanations or annotations for lyrics do not sufficiently transform the material to be able to circumvent the requirement of a license.

Finally, he argued that the process of obtaining permission from copyright holders, in general, has never been easier. For these reasons, he asked that Congress not make any legislative changes to the doctrine of fair use.

Testimony of Kurt Wimmer

Finally, in his testimony, Kurt Wimmer, general counsel for the Newspaper Association of America, testified that the newspaper industry believes that the doctrine of fair use should not be changed from its current formulation in the Copyright Act.

Wimmer acknowledged that the case law on fair use is imperfect, but he argued that the courts, not the legislature, are still best suited to balance individual interests in copyright against the interests of society as a whole. Specifically, Wimmer pointed to fair use as the most important reason copyrights and First Amendment free expression rights do not directly conflict with each other. He argued that by “conducting a case-by-case analysis, courts can appropriately consider all relevant interests, changing norms, and other relevant factors when setting the limits of fair use.”

Although Wimmer expressed concern that courts may be giving too much weight to the “transformative use” inquiry in the fair use analysis, he predicted that courts will, over time, change course slightly to use a more balanced consideration of the factors.


After hearing testimony from these various experts and practitioners, the House panel should have a fairly good sense of the players affected by any changes to the doctrine of fair use. In the last of this series of columns, I will offer my own perspective on the doctrine of fair use and its continued role in the encouragement of innovation and creativity.

Posted in: IP Law