RE: Haworth Press Journals

In an earlier message I wrote: "A publisher cannot limit your fair use rights by a notice in the publication."

Glenn Tenney then asked: "But what if the publisher required a signed contract of these terms prior to selling you the book?"

Trotter Hardy then asked whether, if the contract restriction is not valid, would that be due to copyright doctrine or contract doctrine.

My original comment was based upon my view that copyrights are property. Fair use limits the property. Therefore, the copyright owner does not own "as property" that which would constitute fair use, and cannot withhold that which he does not own.

The contract question is interesting, and I have wondered about it myself. While I would like to think that the answer is clear that the contract limitation would be invalid on pre-emption grounds, I'm not really sure. I do feel more confident with regard to the contract doctrine response, although I could be wrong. I believe that the law frowns upon restrictions upon the alienation of chattels. For example, suppose that I am Hertz or Avis. I sell you one of my older cars, but in the contract of sale I expressly forbid you to rent the car to anyone. You agree. But are you bound by the contract term? I think not.

What do others think?

Prof. Howard R. Lurie
Villanova Law School
lurie[_at_]ucis.vill.edu Received on Wed Apr 06 1994 - 22:14:27 GMT