Fair Use: The Case of the Missing Case

34 Pages Posted: 6 Jan 2012 Last revised: 6 Dec 2012

Date Written: January 4, 2012


Three Supreme Court cases dominate fair use: Sony, Harper and Row, and Campbell. One case has gone mysteriously missing. In Stewart v. Abend, the Supreme Court held that it was not fair use for the producers of Alfred Hitchcock’s film "Rear Window" to continue showing the film. Their rights had been terminated in the underlying story, "It Had To Be Murder," by an unanticipated shift in copyright case law. Stewart remains well known in copyright law for its lengthy discussion of a complex issue of copyright renewal, but Stewart’s short, sharp fair use discussion has gone by the wayside. At best, Stewart makes a cameo in judicial opinions and casebooks. Sony, Harper and Row, and Campbell appear together every time, like three musketeers. Stewart’s fair use analysis is brief, but offers valuable precedent on the application of fair use to transactions, the definition of relevant markets, and the very meaning of “fair.”

Suggested Citation

McJohn, Stephen M., Fair Use: The Case of the Missing Case (January 4, 2012). IDEA: The IP Law Review, Forthcoming; Suffolk University Law School Research Paper No. 12-02. Available at SSRN: https://ssrn.com/abstract=1980329 or http://dx.doi.org/10.2139/ssrn.1980329

Stephen M. McJohn (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

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