Bad Faith and Fair Use

Simon Frankel

Covington & Burling LLP

Matt Kellogg

Covington & Burling LLP

September 1, 2012

Journal of the Copyright Society of the USA, Vol. 60, p. 1, 2013

The fair use doctrine plays a critical role in copyright law, protecting certain socially valuable uses of a copyrighted work against claims of infringement so as to maintain the balance between the author’s limited monopoly and the general public good. This article examines a relatively recent and increasingly problematic trend in fair use jurisprudence: courts’ tendency to decide whether a copyright defendant has made a fair use of the plaintiff’s work based in part on whether the defendant has acted in “bad faith.”

Courts use the term “bad faith” to encompass a wide range of conduct weighing against a finding of fair use. In some cases, the term refers to the fact that the defendant obtained an unauthorized copy of the copyrighted work. Elsewhere, it refers to the fact that the defendant did not first request permission from the plaintiff to use the copyrighted work. In yet other cases, the defendant’s bad faith is premised on a failure to acknowledge the plaintiff as the original author. Some courts have even suggested that a defendant acts in bad faith when she could not have “reasonably believed” that her use of the copyrighted work was fair.

As the article explains, there is no historical, legal, or logical reason that these or any other supposed measures of bad faith should play a role in the fair use analysis. The bad faith inquiry does not serve the central goal of copyright — to increase public access to new works — and in fact does much to impede this goal. It also needlessly confuses fair use with other areas of law, makes copyright litigation more costly and less predictable, and undermines copyright’s built-in First Amendment protections. Yet bad faith has persisted as an element of fair use for the past several decades, largely because of a failure to appreciate either the lack of historical or legal basis for this doctrinal mistake or its consequences. In an effort to correct this misunderstanding, the article offers the first in-depth exploration of both the historical origins of the bad faith inquiry and the many reasons courts should drop all considerations of bad faith from fair use.

Number of Pages in PDF File: 36

Keywords: copyright, fair use, bad faith

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Date posted: October 22, 2012 ; Last revised: June 18, 2013

Suggested Citation

Frankel, Simon and Kellogg, Matt, Bad Faith and Fair Use (September 1, 2012). Journal of the Copyright Society of the USA, Vol. 60, p. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2165468

Contact Information

Simon Frankel
Covington & Burling LLP ( email )
One Front Street
San Francisco, CA 94111
United States
Matt Kellogg (Contact Author)
Covington & Burling LLP ( email )
One Front Street
San Francisco, CA 94111
United States
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