January 18

Early Fair Use cases

Read the following cases and excerpted chapter:

• Folsom v March Download Folsom v March
  (C.C.D. Mass. 1841) is the first U.S. case to consider 'fair abridgment', what we would later (for the first time in Lawrence v. Dana 15 F.Cas. 26 (C.C.D. Mass. 1869)) refer to as 'fair use'.  Take note of the factors that Justice Story uses to drive his legal conclusions.  How salient are these factors in this case?  Are they the quintessence of what you consider to be fair use?  

• Excerpt from R. Anthony Reese, The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses Download The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses
  , INTELLECTUAL PROPERTY STORIES (Jane Ginsburg & Rochelle Dreyfuss, eds. 2006)--what point is Reese trying to make here?

• Henry Holt v. Liggett & Myers Tobacco Download Henry Holt v. Liggett & Myers Tobacco
  (E.D. Pa. 1938) is a short case about a short (adapted and referenced) quote used for commercial purposes.  Dr. Felderman's book, the source of the quote, was 366 pages.  

• In Toksvig v. Bruce Publishing Co Download Toksvig v. Bruce Publishing Co
  . (7th Cir. 1950) what do you think about the court's consideration of benefits to the would-be fair user?

• Time v. Bernard Geis Associates Download Time v. Bernard Geis Associates
  (S.D.N.Y. 1968) involves the renowned Zapruder film that captured the death of President Kennedy and the kinds of uses to which others might put frames of that film.  How does/should it matter that a copyrighted work is especially important to public discourse when making a fair use assessment?

• New York Times v. Roxbury Data Interface Download New York Times v. Roxbury Data Interface
  (D.N.J. 1977) is decided in May of 1977, about seven months before the Copyright Act of 1976 would become effective on January 1, 1978.  Notice how the court deals with the transition from common law to statutory law.  Consider how things might be different if the court were dealing with a pending change in statutory law.