Citation: Matthew Sag, The Pre-History of Fair Use, 76 Brooklyn Law Review 1371 (2011)
In a nutshell:
In The Pre-History of Fair Use, Matthew Sag argues that the American fair use doctrine is best understood as the continuation of a line of English fair abridgment cases stretching back to the Statute of Anne in 1710, more than a century before Folsom v. Marsh, the 1841 decision usually treated as the doctrine’s origin.
Summary
Histories of fair use in the United States almost always begin with Justice Story’s 1841 decision in Folsom v. Marsh. The Pre-History of Fair Use argues that this baseline falls short by more than a hundred years. Almost all copyright case law before 1841 was English, and American courts treated it as persuasive authority; in Folsom itself, Justice Story cited sixteen English authorities and no American cases. Reviewing the fair abridgment cases litigated in English courts of law and equity between 1710 and 1841, the article reaches two conclusions. First, statutory copyright went beyond merely mechanical acts of reproduction almost from its inception. Second, there is substantial continuity between premodern fair abridgment and fair use in the United States today.
The first conclusion matters because critics of Folsom, most prominently Oren Bracha, have portrayed the decision as a radical enlargement of copyright, on the premise that copyright before Story tolerated nearly all secondary works. Sag shows that the sources supporting this narrow, mechanical conception of premodern copyright, including the text of the Statute of Anne, Blackstone’s Commentaries, and Samuel Johnson’s defense of abridgment, tell only part of the story. In cases such as Austen v. Cave (1739), Gyles v. Wilcox (1741), and Butterworth v. Robinson (1801), English courts distinguished between abridgments that were fair or bona fide and those that were merely colorable evasions of the statute, and they enjoined partial and even nonliteral copying. That distinction expanded on the narrow language of the first copyright act a full century before Folsom.
The article then identifies four constants linking the abridgment cases to the modern doctrine: case-by-case analysis, attention to the amount copied, market effect, and something closely resembling transformative use. Cases like Dodsley v. Kinnersley, Roworth v. Wilkes, and Wilkins v. Aikin turned on whether the defendant’s work would substitute for the original and on whether the defendant had applied invention, learning, and judgment to produce a new work. The conclusion draws out the doctrinal payoff: because copyright owners’ rights have been subject to and defined by the public’s fair use rights since the beginning of statutory copyright, the common characterization of fair use as a narrow and disfavored exception is historically unfounded.
Why read this article?
The Pre-History of Fair Use provides a detailed doctrinal history of fair use before Folsom v. Marsh, a period largely neglected in American scholarship. It works through the leading English abridgment cases, from Burnett v. Chetwood (1721) through Gyles v. Wilcox to Wilkins v. Aikin (1810), and draws on the early copyright treatises of Maugham, Godson, and Espinasse, as well as Samuel Johnson’s Considerations on the Case of Dr. Trapp’s Sermons. The article also explains why this history matters now. Litigants in modern disputes, from Google Books to the Harry Potter Lexicon, routinely make claims about the essential nature of copyright and fair use; this article supplies the historical record against which those claims can be tested.
Further Reading
Oren Bracha, The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright, 118 Yale Law Journal 186 (2008) – Argues that Folsom v. Marsh was part of a nineteenth-century transformation of copyright from a narrow right against verbatim reprinting into an abstract right of market control; The Pre-History of Fair Use responds directly to this account.
Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695–1775) (Hart Publishing 2004) – A detailed history of English copyright from the lapse of press licensing through Donaldson v. Becket, challenging the conventional account of copyright’s development as an author’s right.
L. Ray Patterson, Copyright in Historical Perspective (Vanderbilt University Press 1968) – The classic history of Anglo-American copyright from the Stationers’ Company through the nineteenth century, and still a standard reference on the regulatory origins of copyright law.
William F. Patry, The Fair Use Privilege in Copyright Law (BNA Books 1985) – A treatise tracing the historical development of the fair use doctrine and its application across contexts ranging from parody and criticism to photocopying.