Marquette Hosts 2023 Junior Faculty Workshop

Last weekend, it was my privilege to participate in the Law School’s Ninth Annual Junior Faculty Works-in-Progress Conference. I look forward to this event every year, when we invite a group of scholars at the outset of their legal academic careers to present draft papers to each other and to commenters from the Marquette faculty, followed by an hour of nonstop feedback and discussion. The energy of these workshops is illustrated by the fact that in our last couple of sessions, participants were slamming their cards down on the table like Jeopardy contestants to grab a top spot in the comment queue!

This year we had a fabulous group of participants:

  • Julie Campbell, Faculty Fellow at the Jaharis Health Law Institute at DePaul University College of Law;
  • Jade Craig, Assistant Professor at Nova Southeastern University Shepard Broad College of Law (currently visiting at the University of Mississippi);
  • Alexandra Fay, Richard M. Milanovich Fellow at the Native Nations Law and Policy Center at UCLA School of Law;
  • Meredith Filak Rose, Senior Policy Counsel at Public Knowledge;
  • Jordana Goodman, Assistant Professor at Chicago-Kent College of Law;
  • Jason Reinecke, Assistant Professor at Marquette University Law School; and
  • Lauren Roth, Assistant Professor at Touro Law Center.

Commenters from Marquette included Prof. Christine Chabot, Prof. Alex Lemann, Prof. Michael O’Hear, and Prof. David Papke. The workshop was organized by Associate Dean Nadelle Grossman, Professor Kali Murray, and myself, with the expert assistance of Stephanie Danz, Jourdain LaFrombois, Ben Manske, and the Facilities student workers.

It is a wonderful opportunity for the law school to bring together such a talented group of legal scholars from a wide variety of backgrounds and fields that ordinarily would not be in close conversation with each other, and to be able to offer constructive feedback at a stage when it could have a meaningful impact. Thanks to everyone for participating!

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Alan Latman and the Modern Fair Use Doctrine

The AWF oral argument was yesterday morning — here’s SCOTUSBlog’s recap — but I’ll save my thoughts on it for later. At the end of my last post, I had reached the 1950s. At that time, the term “fair use” was being used in a desultory way to refer to all instances of noninfringement, whether due to limitations on the scope of copyright or some sort of exception. As Arthur Weil put it, “‘fair use’ simply means a use which is legally permissive.”

That was where things stood when the Copyright Office, in 1955, began to conduct a series of studies to pave the way for a thorough-going revision of the 1909 Copyright Act. The 1909 Act contained no reference to fair use at all; the doctrine was entirely a judicial creation. So one question was whether a new, revised copyright act should take official notice of fair use, and if so, what it should say.

The “fair use” study was assigned to a young attorney, Alan Latman, then a rising star in the copyright field. Latman’s report was one of the key founding documents for what eventually became Section 107 of the 1976 Copyright Act, the fair use statute that we have today, and has been cited repeatedly by the Supreme Court in its attempts to divine the contours of fair use.

In his report, Latman immediately identified a significant problem with “fair use”: what courts were referring to as a single concept was in fact two different things.

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The Surprisingly Confused History of Fair Use: Is It a Limit or a Defense or Both?

The Supreme Court’s upcoming oral argument in Andy Warhol Foundation v. Goldsmith will focus on one of the most practically significant of the thorny questions of copyright law: what uses are fair? Fair use is both crucially important and profoundly murky. Indeed, its murkiness is part of its design. The doctrine of fair use has served since its inception as a sort of an amorphous safe haven for unwritten but important limits on a statutory right, decided on a case-by-case basis. It’s the Mutara Nebula of copyright law.

That makes fair use a bit of an anachronism in a modern age where statutes are read literally and every degree of judicial freedom has been crushed down into a multi-part test.  Indeed, fair use’s role in copyright law has arguably grown as judges, shut out of other ways of using discretion to decide copyright claims, have turned to fair use to accomplish what substantial similarity or limitations on scope once did.

That growing importance has set up the current conflict. In the last several decades, there have been attempts to define fair use more rigorously, to make it more predictable and ensure consistent application. The AWF case involves one of those — defining fair use as revolving around a single, critical concept: “transformativeness.” I’ll take a look at those efforts in a future post.

But there’s another aspect of the AWF case that makes it difficult. Fair use has historically served not one but two murky and undefined roles.

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