Pigato, Lisanne M.

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DePaul Journal of Art, Technology & Intellectual Property Law Volume 3 Issue 2 Spring 1993 Article 3 Fair Use: An Amendment to the Doctrine Lisanne M. Pigato Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Lisanne M. Pigato, Fair Use: An Amendment to the Doctrine, 3 DePaul J. Art, Tech. & Intell. Prop. L. 65 (1993) Available at: https://via.library.depaul.edu/jatip/vol3/iss2/3 This Legislative Updates is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. LEGISLATIVE UPDATESFAIR USE:AN AMENDMENTTO THE DOCTRINEINTRODUCTIONOn October 24, 1992, former President Bushsigned H.R. 4412 which has now become Public LawNo. 102-492.' This legislation adds a single sentenceto the end of Section 107 of the Copyright Act of1976, which sets out the factors a court can considerwhen determining fair use of a copyrighted work.This amendment to Section 107 unequivocally statesthat the unpublished nature of a work is not enoughto prevent a finding of fair use.2 Instead, it is only onefactor out of many which must be considered by acourt in evaluating the defense of fair use. Thisamendment has a direct impact on copyright analysisbecause prior to this amendment, there was someuncertainty as to the application of the fair usedefense to unpublished works.This Update will explore the background of thefair use amendment; specifically, it will discuss twoSecond Circuit Court of Appeals opinions and aSupreme Court opinion which have caused concernamong those in the literary community and the con-gressional response to this concern. The substance ofthe amendment will be examined along with itspotential impact on the literary community and theiraudience. The Update concludes that the fair useamendment is consistent with the goals of copyrightlaw and will have a beneficial effect on both the liter-ary community and the general public.BACKGROUNDThe Copyright Clause of the United States Consti-tution empowers Congress to enact legislation whichprotects authors' rights to their works.' Hence,Congress enacted the Copyright Act of 1976 whichgrants the author certain exclusive rights in his or herwork." The underlying premise of granting suchexclusive rights is to give authors and inventors anincentive to create, which will thus benefit societythrough a contribution to the progress of arts and sci-ences.5 Thus, the primary purpose of copyright is tobenefit the public rather than to reward the author.6Authors' exclusive rights, however, are subject tocertain limitations, 7 one of which is the doctrine offair use." The fair use doctrine is an affirmativedefense to a copyright owner's claim of infringement.9The doctrine balances the copyright owner's exclusiverights to his work10 with the need of others to use thecopyrighted works for reasonable purposes, such ascomment, criticism, and teaching." The purpose offair use is to allow someone, other than the originalauthor, to make secondary use of a copyrighted workto produce a new work, thereby fulfilling the consti-tutional mandate of promoting the progress of artsand sciences. 2The common law fair use doctrine was codifiedby Congress in the Copyright Act of 1976 and pro-vides that "notwithstanding the provisions of section106, the fair use of a copyrighted work.. .for purposessuch as criticism, comment, news reporting, teaching,... scholarship, or research, is not an infringement ofcopyright."" Section 107 directs courts to make case-by-case fair use determinations based on the follow-ing factors: (1) the purpose and character of the use,including whether such a use is of a commercialnature or is for nonprofit educational purposes; (2)the nature of the copyrighted work; (3) the amountand substantiality of the portion used in relation tothe copyrighted work as a whole; and (4) the effect ofthe use upon the potential market for or value of thecopyrighted work." While all four factors are to beconsidered in each fair use case, the list is nonexclu-sive and additional factors may be considered at thecourt's discretion. 5 For example, a court may considerequitable principles such as the defendant's good orbad faith. 6For a number of years, controversy and confusionexisted in the legal and literary communities regard-ing the fair use doctrine and its application to unpub-lished works. The recent controversy over unpub-lished works began in 1985 with the Supreme Court'sdecision in Harper & Row Publishers, Inc. v. NationEnterprises.7 In that case, former President GeraldFord had written his memoirs which recounted hispardon of former President Nixon, and sold the rightsto Harper & Row. 8 Harper & Row, in turn, soldexcerpts to Time Magazine.'9 However, before Timepublished the memoirs, The Nation magazine, in aneffort to "scoop" the story, gained unauthorizedaccess to President Ford's manuscripts and publishedexcerpts.2 As a result, Time canceled its article andrefused to pay Harper & Row the remaining moneyowed.21 Harper & Row then brought suit in FederalDistrict Court for the Southern District of New Yorkagainst the publication of The Nation, alleging copy-right infringement.22 The District Court held that theFord memoirs were protected by copyright at the timeof The Nation's publication and that the use of thematerial thus constituted copyright infringementSpring, 1993 65 1Pigato: Fair Use: An Amendment to the DoctrinePublished by Via Sapientiae, 2016under the Copyright Act.3 The Court of Appeals forthe Second Circuit reversed, holding that The Nation'spublication constituted fair use under §107 of theCopyright Act of 1976.4Upon granting certiorari, the Supreme Courtreversed, finding that The Nation's article did not con-stitute fair use. 21 The Court concluded that "theunpublished nature of a work is a key, though notnecessarily determinative, factor tending to negate adefense of fair use." 21 The Court further reasoned thatthe scope of fair use is narrower with respect tounpublished works.' Significantly, the Court did notimpose a per se rule against the application of the fairuse doctrine to unpublished works. 28 Instead, thecourt considered all four statutory factors before con-cluding that the quotations went beyond fair use.YIn the aftermath of Harper & Row, two SecondCircuit decisions, Salinger v. Random House and NewEra Publ. Int'l v. Henry Holt & Co., cast a chillinguncertainty over the publishing community withrespect to the fair use of unpublished works." InSalinger, J.D. Salinger, the novelist and short-storywriter, sued Random House and writer Ian Hamiltonfor infringement of the copyright in Salinger's unpub-lished letters, which Hamilton had quoted and para-phrased in a biography to be published by RandomHouse." Interpreting Harper & Row to mean thatunpublished works "normally enjoy complete protec-tion," the Second Circuit ordered the District Court toenjoin publication of the biography in the form inwhich it was written.32Two years later, the Second Circuit reaffirmed thereasoning of Salinger in New Era Publ. Int'l v. HenryHolt & Co. New Era Publications, the plaintiff, is relat-ed to the Church of Scientology and was found tohold the copyrights of the deceased L. Ron Hubbard,founder of the Church of Scientology.3 3 The defen-dant, Henry Holt & Co., intended to publish a biogra-phy on Hubbard which included numerous quota-tions from Hubbard's unpublished writings which thebiographer used to illustrate Hubbard's character. 4New Era Publications sued to enjoin publication ofthe book on the ground that the biographer infringedon Hubbard's copyrights. 5 Henry Holt & Co. relied onthe doctrine of fair use as a defense. The DistrictCourt found that the defendant's use of quotes todemonstrate facts constituted a compelling fair usepurpose., The Second Circuit, however, rejected thatreasoning and reiterated Salinger's formulation thatunpublished works normally enjoy complete protec-tion. 7 The court also stated that "the copying of morethan minimal amounts of unpublished expressivematerial calls for an injunction barring the unautho-rized use."As a result of Salinger and New Era, the scope ofthe fair use doctrine as applied to unpublished mate-rials was considerably narrowed as the focus of theiranalysis was placed on the unpublished nature of thework." These cases threatened to formulate a per serule against the finding of fair use of any unpublishedmaterials such as letters or diaries.*Since the majority of the nation's publishingtakes place in New York, within the Second Circuit'sjurisdiction, the effect of Salinger and New Era hasbeen significant." The publishing community was in astate of apprehension because they feared copyrightinfringement suits when an author quoted fromunpublished texts. In the wake of these two deci-sions, copyright counsel for historians, biographers,and other authors advised their clients that virtuallyany unauthorized use of unpublished materials wouldsubject them to the risk of copyright infringement lia-bility.42 This apprehension dissuaded authors, histori-ans, and their advisors from citing primary sources, astheir profession demands. 3 As a result, publishers andeditors started to refrain from publishing works con-taining quotes from such unpublished materials."Author J. Anthony Lukas, whose opinion is represen-tative of other authors, stated that "if New Era is per-mitted to stand as the guiding precedent in this area,the people of America will increasingly find fewerworks of compelling history and biography availableon their bookshelves and eventually in theirlibraries." 5 It was within this context that H.R. 4412was proposed.THE LEGISLATIVE RESPONSEDue to the uncertainty regarding the applicationof the fair use doctrine to unpublished works, anamendment to the fair use statutory provision wasproposed and later enacted. Public Law No. 102-492amends the original fair use provision", to clarify thatthere is no per se rule against a finding of fair use ofunpublished works. This section will discuss the sub-stance of this amendment as well as its impact on theliterary community and public.A. Public Law 102-492: Fair UseAmendmentOn March 5, 1992, Representative William J.Hughes of New Jersey introduced H.R. 4412 whichwas eventually signed by former President Bush onOctober 24, 1992, becoming Public Law No. 492.47This new law amends Section 107 of the CopyrightAct of 1976 adding a new sentence to the end of thatsection: "The fact that a work is unpublished shall notitself bar a finding of fair use if such finding is madeupon consideration of all the above factors." 4The aim of the legislation is clear. It is designedto remedy the confusion caused by the restrictivestandards adopted in Salinger and New Era and toreject the notion that there is a per se rule against afinding of fair use with regard to unpublished works.",By rejecting a per se rule, Public Law No. 102-492reaffirms the standard set forth in Harper & Rowwhich demands a complete look at the statutory fac-66 Journal of Art & Entertainment Law 2DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 3, Iss. 2 [2016], Art. 3https://via.library.depaul.edu/jatip/vol3/iss2/3tors as well as any other factors the court finds rele-vant." As the underlying House Report stated, "[tiheCommittee agrees with the Copyright Office that theSecond Circuit in Salingerwent astray in its treatmentof the unpublished nature of the work as leading to adiminished likelihood that the fair use defense, as awhole, will in every case not be available."" Instead,an explicit goal of Congress is to return to the statusquo of Harper & Row, whereby the "unpublishednature of a work is key, though not necessarily deter-minative" to a determination of fair use."The language of the legislation accomplishesCongress' intent in two ways. First, the word "itself'makes it clear that the courts are not to employ a perse rule which would bar a finding of the fair use ofunpublished works." Instead, the court is to considerall four statutory factors, as well as any other relevantfactors, for each claim of fair use of unpublishedworks. Second, this intent is again manifested throughthe concluding phrase "all the above factors."'- Thislanguage straightforwardly tells courts they have thediscretion to consider other relevant factors, such as adefendant's good or bad faith, in addition to thoseincluded in Section 107, when making their fair usedeterminations. The legislation does not direct thecourts as to how much weight to give each factor.Thus, under Public Law No. 102-492, a finding offair use will be based on the four statutory factors inaddition to other factors the court finds relevant.Importantly, the fact that the work being used isunpublished shall not bar such a finding. For exam-ple, if a magazine appropriates portions of a poet'scopyrighted but unpublished poems, the magazinewill not be automatically barred from asserting a fairuse defense against the poet's copyright infringementclaim. Instead, the unpublished nature will be one ofmany relevant factors to be considered.B. Potential Impact of the Fair UseAmendmentPublic Law No. 102-492 will have an impact onthose in the literary community who choose to citefrom unpublished materials, as well as affecting copy-right owners, and the public in general. The uncer-tainty that has flooded the literary community for thepast few years should be resolved as a result ofPublic Law No. 102-492. The legislation should deemthe Second Circuit decisions, Salingerand New Era, asno longer being "good law" with regard to the pub-lished/unpublished work dichotomy the cases fos-tered. In addition, the amendment should aid thecourts in exercising a more consistent methodologywhen determining the fair use of unpublished works.As a result, publishers, historians, and authorsshould feel more at ease in exercising their FirstAmendment right to free speech when citing from pri-mary sources that are unpublished. Owners of suchunpublished primary sources, on the other hand, mayfeel less secure in the protection of their works asthey had in the past. Nevertheless, the public willbenefit from the fair use amendment because newworks will be created. Protecting unpublished materi-als from a fair use defense, as it had been in theSalinger and New Era era, would only lead to furthersuppression of information. Many useful and intellec-tually stimulating materials may never have beenintroduced to the public. Such protection of unpub-lished works arguably conflicts with the aims of copy-right law which seeks to encourage creativity andprovide public access to copyrighted works. Instead,this protection would only promote concealment ofvaluable works instead of the public illumination thatwould result otherwise." Thus, as a result of the fairuse amendment, the public will benefit by theincreased access to unpublished copyrighted works aswell as a greater access to a wider variety of works.Public Law No. 102-492 also allows academics inthis field to pursue their careers in a meaningful waythat is beneficial to society at large. As stated byauthor Taylor Branch, "[t]he quotation, in modest andappropriate amounts, of source materials is crucial toproviding intimacy, immediacy, ambience, and re-cre-ation of motives and values that history requires andreaders need."", Thus, the direct impact of the fair useamendment will have a beneficial impact on literarycommunity as well as the public.CONCLUSIONThe fair use amendment, embodied in Public LawNo. 102-492, will alleviate the recent uncertainty thatexisted in the legal and literary communities withregard to the fair use of unpublished works. The con-fusion began in Harper & Row, New Era, and Salingerwhere a per se rule against a finding of fair use ofunpublished works emerged. A per se rule against fairuse of unpublished materials will no longer be intact;rather, the unpublished nature of the work will mere-ly be one consideration along with other statutoryand discretionary factors. This will leave historians,authors, and publishers who use appropriate portionsof unpublished, copyrighted materials with more pro-tection from copyright infringement liability. Mostimportantly, readers will have access to more worksof history and biography on the bookshelves and intheir libraries.Lisanne M. Pigato1. Pub. L. No. 102-492, 106 Stat. 3145 (1992) (codified asamended at 17 U.S.C. § 107 (West Supp. 1992)).2. Id.3. The Copyright Clause of the United States Constitutionprovides: The Congress shall have Power... to promote theProgress of Science and useful Arts, by securing for limited Timesto Authors and Inventors the exclusive Right to their respectiveWritings and Discoveries. U.S. CoNsr. art. I, 5 8, cl. 8.4. 17 U.S.C. 55 101-914 (1982).5. Mazer v. Stein, 347 U.S. 210, 218 (1954). See alsoSpring, 1993 6767i , 1993 3Pigato: Fair Use: An Amendment to the DoctrinePublished by Via Sapientiae, 2016

Fair Use: An Amendment to the Doctrine

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Fair Use: An Amendment to the Doctrine

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