August 23, 2004 · Richard Posner
I’ve received some interesting comments on my last posting. One of the commenters asked me to explain the fair use doctrine; here goes.
The doctrine, which has close counterparts in patent and trademark law, permits a degree of unauthorized copying of copyrighted works. Shocking! If a teenager takes a joyride in my car and is arrested, can he defend by arguing that it was a “fair use”? No, but the example points up an important difference between physical and intellectual property, a difference obscured by the use of words like “theft” and “piracy” to describe unauthorized copying. If someone takes my car, he deprives me of its use. If he copies my copyrighted book, I still can read, use, and sell the book, although my publisher’s and my income may be less because one fewer copy will be sold. But maybe not–maybe the copycat wouldn’t have bought the book if he’d had to pay the retail price. And if instead of copying an entire book, a book reviewer quotes a paragraph from it, I may well be better off (in contrast, say, to someone who doesn’t want to drive my car but just store stuff in the trunk); and if he had to get my permission to quote, I might be worse off, especially since reviews would lack credibility if reviewers needed the author’s permission to quote. Unauthorized quotation by book reviewers is an example of fair use.
The fair use doctrine originated as a judicial doctrine, and like many judicial doctrines was general in terms, setting forth a standard rather than a set of precise rules. Congress put a clumsy thumb in the pudding in 1976, when it “codified” the doctrine. It wasn’t really codification, because Congress did not set down a legislative rule to supplant the judicial one; it just listed four factors for courts to consider, and it made clear, as is sometimes overlooked but as I tried to make clear in my opinion in one of my court’s countless (and fascinating) “Beanie Baby” copyright cases, Ty, Inc. v. Publications Int’l Ltd., that the four factors are neither exclusive nor mandatory.
Where does that leave us? The general view, which you find in advice to authors, as in “Copyright and Fair Use,” is that fair use is very vague: “The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.”
That’s certainly true if fair use is applied on a case by case basis, using either the four factors or some more general–and more accurate–standard such as that unauthorized copying is permissible when it does not seriously infringe the legitimate interests of the copyright owner. But that isn’t the right approach; it’s much too vague. The right approach is categorical. Book reviewers can quote from the books they’re reviewing. Period (unless, perhaps, the book is so short, and the review so long, and the review quotes so much of the book, that the review becomes an actual substitute for the book–but I’ve never heard of such a case). Parodists can copy a big swatch of the parodied work–otherwise it won’t be recognized as a parody. And so on–and, Patry and I believe, copying of old copyrighted works should be permitted if the copyright owner has not taken minimal steps to place copiers on notice of his interest.