Codifying Copyright's Misuse Defense

14 Pages Posted: 3 May 2007 Last revised: 15 Apr 2008

See all articles by Tom W. Bell

Tom W. Bell

Chapman University, The Dale E. Fowler School of Law


Although courts have found a misuse defense to copyright infringement, lawmakers have not yet codified it. To clarify the doctrine, and to bring the Copyright Act up-to-date with the law, this paper proposes adding a new § 107(b): "It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section." The present paper documents § 107(b)'s codification of the judicial precedents, offers legislative history explaining the proposed statute, and discusses how the new law would work in the real world. Although the proposed codification of copyright misuse would in large part simply rationalize what courts have already said, it would also promote the salutary policy goal of encouraging the owners of expressive works to forego copyright rights in lieu of common law ones.

Keywords: copyright, misuse, codification, fair use

Suggested Citation

Bell, Tom W., Codifying Copyright's Misuse Defense. Utah Law Review, p. 573, 2007, Available at SSRN:

Tom W. Bell (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2503 (Phone)
714-628-2576 (Fax)


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