Possible Futures of Fair Use

Abstract

Campbell v. Acuff-Rose Music, Inc. has unquestionably had transformative impacts on the doctrine of fair use in the U.S. copyright case law. These transformations, though widely praised, have not been universally acclaimed. On the occasion of Campbell having attained its twenty-one year old majority status, it is fitting to consider the possible futures of fair use. What will fair use look like twenty years from now? Will it stay much as it is right now, with cases simply working out details within its current contours? Or has it gone too far, and will the pendulum swing back toward a more restrictive scope for the doctrine? If it has gone too far, in what ways should it be curtailed? Will some uses that today are free as fair uses be permitted in the future under an obligation to pay licensing fees for the uses? Or will fair use continue to expand? And in what new directions might it evolve?

Part I reviews a dozen contributions that Campbell has made to the fair use law and literature, which go well beyond its endorsement of the “transformative” nature of a use as tipping in favor of fairness. Part I discusses several notable cases that have built upon the analytical foundation established in Campbell. Part II considers and responds to various critiques of the present state of fair use law. Campbell itself, interestingly, is not the target of the fair-use-has-gone-too-far critiques, but a number of its progeny are. The most serious charge leveled against the post-Campbell fair use case law is that fair use, under Campbell's influence, has put the United States out of compliance with its international treaty obligations. Part II shows why this is an unsound conclusion. Part III expresses confidence that fair use will survive these critiques and will continue to evolve to provide a useful mechanism for balancing the interests of authors and other rights holders, on the one hand, and subsequent authors and other users of copyrighted works, on the other hand. Of the possible futures of fair use, that which would preserve the status quo and take fair use into new horizons is the one most likely to occur and most to be desired. Part III discusses these new horizons.

Keywords: copyright, IP, cyberlaw, fair use