Author ORCID Identifier
Fair use doctrine, Folsom v. Marsh, Abridgement, Statute of Anne, Copyright, Infringement, England, United States, Derivative right, Reproduction
This article proceeds as follows: Part I begins with a brief summary of the fêted case Folsom v. Marsh and its place in the development of American copyright law. Folsom v. Marsh has been criticized for expanding copyright protection beyond acts of mere mechanical reproduction to include an abstract concept of the work’s value. Of course, this critique is premised on the belief that the scope of copyright prior to Folsom v. Marsh’s intervention was so narrow that it tolerated almost all secondary works. Part II exposes the frailty of this premise.
Specifically, Part II explores the foundation for the mechanical conception of premodern copyright and argues that it is incomplete. A rather narrow vision of literary property can be gleaned from several sources: the apparently narrow grant of rights in the Statute of Anne (the first copyright statute, which went into effect in 1710),some of the earliest cases interpreting the statute, and a number of contemporary writings. As Part II also explains, however, a close reading of the earliest copyright cases and treatises shows that premodern copyright was not consistently limited to mere mechanical acts of reproduction. From 1741 to 1841, courts distinguished between abridgments of copyrighted works that were deemed fair or bona fide, and those that were not. The very existence of this distinction expands on the first copyright statute’s narrow language. This crucial development in copyright law predates Folsom v. Marsh by at least 100 years.
As Part III establishes in detail, the criteria used to evaluate claims of bona fide abridgment in the premodern cases are surprisingly similar to the modern fair use doctrine in the United States. Like their modern counterparts, judges in premodern abridgment cases relied on case-by-case analysis and evaluated the amount taken by the defendant in a highly contextual fashion. Even more striking is the extent to which early cases parallel the modern focus on market effect—namely, the market effect of the defendant’s conduct—and on the extent to which the defendant’s use is transformative. Although not always expressed in these terms, questions of substitution effects and the degree of labor and authorial skill injected by the defendant permeated the premodern copyright cases.
Part IV concludes with a reassessment of Folsom v. Marsh and its contribution to American copyright law. Understanding the prehistory of fair use is useful for understanding fair use in the present. The coevolution of copyright and fair use demonstrates that fair use need not be a narrow and occasional exception to the rights of copyright owners.
Brooklyn Law Review
Matthew Sag, The Prehistory of Fair Use, 76 BROOK. L. REV. 1371 (2011).