Refuge from the Storm: A Fair Use Safe Harbor for Non-Fiction Works

Journal of the Copyright Society of the USA, Vol. 59, No. 3 (Spring 2012): 477-625

150 Pages Posted: 13 Mar 2013

Date Written: 2012


Recently, academics have forecast the existence of reliable patterns from the emerging trends in the fair use cases but have been unsuccessful in providing practitioners and courts with a dependable, concise statement of such patterns for any category of uses. The problem has been that in order to find the pattern, one must focus on the items that are the subjects of the litigation, rather than the language of the cases themselves. Our law firm has developed a library of non-fiction films, books, and other works that were the subject of various litigations, beginning with the two-volume biography of George Washington, which was the subject of Folsom v. Marsh, through the latest cases as they are being filed. An unavoidable pattern popped out of the pages and off the screen. This pattern, supported by a close reading of the cases, eventually became a safe harbor for fair use in non-fiction works and the subject of this Article.

Without necessarily intending to do so, the courts have created a de facto safe harbor for those seeking the shelter of fair use when creating non-fiction works such as documentary films, non-fiction books, news reporting, and satirical material. This Article is designed to define that safe harbor, to demonstrate the rather large area that surrounds the safe harbor, to show practitioners how to use the safe harbor to predict results for works such as documentary films and non-fiction books, and to give courts a supplement to the statutory regimen for fair use.

The notion that anything to do with fair use could be considered “safe” was a departure from decades of legal commentary until Professor Pamela Samuelson, building on previous academic articles, suggested that patterns existed within clusters of cases dealing with the same subject matter. For the most part, law review articles have bemoaned the confusion surrounding the fair use doctrine and, after examining the Copyright Act’s four-factor test, have usually concluded that Congress should amend the fair use doctrine of the Copyright Act.

Nothing in this Article is intended to recommend change in the four factor test of the Copyright Act. Rather, flowing from Judge Pierre N. Leval’s influential concept of “transformative uses,” the safe harbor simplifies the statutory four-factor test in non-fiction works that lie at the heart of the fair use doctrine.

This Article also introduces the concept of a fair use spectrum, which practitioners can use to assist clients in making their uses safer if they intend to seek the protection of the fair use doctrine. In the preparation of this Article, the safe harbor analysis was tested against the results in all cases decided by the courts that deal with documentary films and nonfiction books since January 1, 1978. In order to find these cases, research was conducted to replicate the methodology used by Professor Barton Beebe in his ground-breaking analysis of all fair use cases, with the addition of a few other search tools. The process is set out in more detail in Appendix I to this Article. This search uncovered nearly six hundred opinions between January 1, 1978 and December 31, 2011. Cases dealing with subject matter other than non-fiction works, in the broadest sense, were eliminated. Eight fair use cases from before 1978 were also added, reaching a total of eighty-two cases. Each of these cases was read and charted according to the courts’ analyses and then analyzed according to the safe harbor approach set forth in this Article. The outcome in every case matched the outcome using the statutory four-factor approach and occasionally revealed flaws in the court’s logic, if not in the end result. A chart with both the statutory analysis and the safe harbor approach is set forth as Appendix II to this Article.

Part I of this Article will briefly explain the fair use doctrine and how it fits into the grander scheme of U.S. copyright law. Part II will introduce the concept of a safe harbor for non-fiction works, describe its basis in established case law, and explain how to analyze whether a documentary film, non-fiction book, or similar work falls within the safe harbor of fair use. Part III will review various arguments that are repeatedly raised by litigators and addressed in written opinions, but in reality change nothing. They are called “distractions” because of their neutral impact on the actual outcomes of the cases. Part IV will introduce the concept of a fair use spectrum, and will discuss cases that are in the waters around the safe harbor, but are nevertheless fair use. Part V will demonstrate how the safe harbor test identifies a category of uses in non-fiction works that are not fair use. Finally, Part VI relates a case study in which the fair use spectrum was used in practice to help a filmmaker land in the safe harbor. This case study involves the film Expelled, which became the subject of Yoko Ono Lennon v. Premise Media Corp.

This Article provides a short-hand method for determining fair use of assets in non-fiction works. Hopefully, other commentators will examine the actual material involved in clusters of cases dealing with other subject matters and find similarly reliable patterns.

Suggested Citation

Donaldson, Michael, Refuge from the Storm: A Fair Use Safe Harbor for Non-Fiction Works (2012). Journal of the Copyright Society of the USA, Vol. 59, No. 3 (Spring 2012): 477-625, Available at SSRN:

Michael Donaldson (Contact Author)

Donaldson & Callif ( email )

400 South Beverly Drive Suite 400
Beverly Hills, CA 90212
United States

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