Fair Use Jurisprudence 2019-2021: A Comprehensive Review

Abstract

Copyright covers a huge range of expressive activity and is automatic. Just about anyone who wants to do more than read, watch, or use a work relies on the doctrine of fair use in order to avoid liability for copyright infringement. The Supreme Court has referred to fair use as a sort of safety valve that provides breathing space to allow copyright to coexist with freedom of expression. And it is an evolving doctrine; disputes concerning fair use are constantly working their way through the American legal system, but the vast majority of cases do not make the news despite their importance to creative expression and innovation.

At the UCI Intellectual Property, Arts, and Technology Clinic, we work with independent filmmakers to make sure that when they do need to make fair use, they can do so responsibly, appropriately—and safely. Over the past couple of years, our Filmmaker Counseling team began to hear of a rising number of fair use opinions coming out of the federal courts, and we decided to embark on an exhaustive study of recent fair use decisions in copyright infringement cases. In total, we identified and analyzed seventy-two opinions issued by federal courts and made available on Westlaw or Lexis between January 1, 2019, and February 25, 2021. In this document, we provide abstracts of 72 opinions along with some commentary on selected cases. We have also prepared an online table of these cases, which is available at the UCI Intellectual Property, Arts, and Technology Clinic website.

This document and our Table of Cases will be updated periodically as new cases are decided