Re: Fair Use

>>> RCumbow[_at_]GrahamDunn.com 05/09/02 23:13 PM >>>
>It's become fashionable of late, on this list and
>elsewhere, to say that there is no "right" to fair
>use, and that fair use is only a defense to a claim
>of infringement. I am always reluctant to identify
>anything as an inherent "right" unless the
>Constitution or the Supreme Court says it is. But I
>am equally unconvinced that fair use is solely a
>defense to copyright infringement. Does any of the
>posters who has made this statement have authority
>supporting it?

>The language of the statute itself, 17 USC 107, says
>simply that "the fair use of a copyrighted work ...
>is not an infringement of copyright." That seems to
>me to state plainly that fair use is a non-infringing
>act in the first instance, not just an available
>defense to a claim of infringement.

<<<<<

The Supreme Court has made it clear that procedurally, fair use operates as an affirmative defense. That is, once the plaintiff has made out a prima facie case of infringement (ownership of a valid copyright, copying and substantial similarity of protected expression), then the defendant has the burden of proving that its use is a fair use. I don't have citations handy, but I believe this point is made in both Harper & Row v. The Nation and Campbell v. Acuff-Rose.

Having said that, it may nonetheless be the case that there is a "right" to fair use, in that it may be required by the First Amendment to the Constitution. Feist holds that "originality" is required by the Copyright Clause, and Harper & Row suggests that both idea/expression and fair use are both required by the First Amendment. Eldred v. Ashcroft involves a First Amendment Claim as well as a Copyright Clause claim, so we may get some further comments from the U.S. Supreme Court this fall.

Tyler T. Ochoa
Associate Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School

Visiting Associate Professor
University of California
Hastings College of the Law Received on Fri May 10 2002 - 17:15:53 GMT