Making Sense of Fair Use: A Scientific Approach

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When it comes to the doctrine of fair use, Mark Twain said it first and said it best: "Only one thing is impossible to God: to find any sense in any copyright law on the planet."  I've shared my fellow Missourian's sentiments more than once as I've tried to help clients navigate the murky waters of copyright fair use.  Is it a parody?  Or just a satire?  Is it "transformative"?  Is there a discernible "effect" upon the "potential market" of the original? The legal waters of fair use are almost as muddy as the waters of Mississippi River that I can see from my office window.

When I teach copyright fair use to my law school students, I stress how hard it is to pin down the key legal concepts or to make reliable predictions from past decisions.  For example, can you really draw a meaningful distinction between 2 Live Crew's use of all of the music and most of the key lyrical phrases from the song "Pretty Woman" in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and Penguin Books' use of some of the art and some of the language from the works of Dr. Suess in The Cat NOT In the Hat, its witty riff on the O.J. Simpson trial in Dr. Suess Enterprises, Inc. v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997)? The Ninth Circuit thought it could draw that distinction.  Penguin's pre-publication lawyers apparently did not.

But perhaps the science of statistics can provide the remedy to Mark Twain's complaint.  As I learned in William Patry's excellent copyright blog, Professor Barton Beebe of the Cardozo School of Law has completed an empirical study of all 306 U.S. copyright fair use opinions during the 28-year period from 1978 (the effective date of the new Copyright Act)  through 2005.  Although the results of that study will be published later this year in the Pennsylvania Law Review, you can read the article at Professor Beebe's website.  As he explains in his summary, his study "shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome.  It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of the doctrine of the leading cases, particularly those from the Supreme Court. "  It is, indeed, a fascinating new look at how the various "fair use" factors affect the the outcomes of the cases.  Although Professor Beebe's work would not have satisfied Mark Twain, it does help the rest of us, including our clients, find a little more clarity in those muddy waters.

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Greg May - May 25, 2007 3:35 PM

I'm looking forward to reading Professor Beebe's article. That was an awful lot of work for him and his researchers.

Especially intriguing are those parts of the summary referring to (my emphasis) "which factors and subfactors ACTUALLY drive the outcome of the fair use test in practice . . . and the extent to which judges STAMPEDE THE FACTOR OUTCOMES to conform to the overall test outcome."


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