Fair Use: An Affirmative Defense?

29 Pages Posted: 11 Jul 2015 Last revised: 3 Sep 2015

Date Written: July 9, 2015


The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., solidified the treatment of fair use as an affirmative defense. However, treating fair use as an affirmative defense shifts the burden to the defendant while in most fair use cases plaintiffs are able to easily prove a prima facie case of infringement. This Article identifies that, despite its decision in Campbell, the Supreme Court has not yet undertaken a thorough analysis of whether Congress intended fair use, as codified in Section 107 of the Copyright Act, to be treated as an affirmative defense. In fact, as explored in this Article, the legislative history cuts against viewing fair use as an affirmative defense, and the legislative history explicitly confirms what the statute clearly states: Congress did not intend fair use to be an affirmative defense; a defense, yes, but not an affirmative defense. The negative consequences of labeling fair use an affirmative defense support shifting back to what Congress intended. Fair use should not be seen as an affirmative defense, but should instead be treated as a defense that shapes the scope of a copyright owner’s rights.

Keywords: copyright, fair use, litigation, affirmative defense

JEL Classification: K10, K41, O34

Suggested Citation

Loren, Lydia Pallas, Fair Use: An Affirmative Defense? (July 9, 2015). 90 Washington Law Review 685 (2015), Lewis & Clark Law School Legal Studies Research Paper No. 2015-12, Available at SSRN: https://ssrn.com/abstract=2628904

Lydia Pallas Loren (Contact Author)

Lewis & Clark Law School ( email )

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