Alan Latman and the Modern Fair Use Doctrine

Posted on Categories Intellectual Property Law, Legal History, PublicLeave a comment» on 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. Continue reading “Alan Latman and the Modern Fair Use Doctrine”

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

Posted on Categories Intellectual Property Law, Legal History, PublicLeave a comment» on 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. Continue reading “The Surprisingly Confused History of Fair Use: Is It a Limit or a Defense or Both?”

The Stakes in Andy Warhol Foundation v. Goldsmith

Posted on Categories Intellectual Property Law, Public, U.S. Supreme CourtLeave a comment» on The Stakes in Andy Warhol Foundation v. Goldsmith

Next week, the Supreme Court will hear oral argument in Andy Warhol Foundation v. Goldsmith, the first non-software fair use case the court has heard since 1994. This has copyright lawyers aflutter, as fair use law has been in increasing disarray for the last 20 years or so, and there is hope that finally the Supreme Court will give lower courts much-needed guidance. Unfortunately, I think the probability is higher of a mush-filled disaster of an opinion, like the one in Star Athletica v. Varsity Brands (2017), that not only gives no guidance, but eliminates the few stable boundaries we have.

That’s because fair use doctrine is a poor fit for the way modern courts operate, and there is probably little the Court can do to fix that, but a lot it can do to make the problem worse. But before I get there, I want to lay out in this post what’s at stake in AWF.

The case involves a licensing deal between celebrity photographer Lynn Goldsmith and Vanity Fair magazine. Continue reading “The Stakes in Andy Warhol Foundation v. Goldsmith

Welcome to Our October Guest Blogger!

Posted on Categories Public, Student ContributorLeave a comment» on Welcome to Our October Guest Blogger!

Our Student Contributor for October is 3L Emilie Smith. Emilie is from Green Bay, Wisconsin, and has a strong interest in Business Law and Intellectual Property Law. She currently has a comment pending publication in the Marquette Law Review on the digital recreation of copyrighted tattoos for use on video game avatars. Welcome Emilie!

No Exit

Posted on Categories Election Law, Political Processes & Rhetoric, PublicLeave a comment» on No Exit

Prof. Rick Hasen of UCLA, an expert in election law, had an op-ed in Friday’s New York Times that argued that in the wake of the 2020 election and its aftermath, including the January 6th attack on Congress, “[w]e must not succumb to despair on indifference. It won’t be easy, but there is a path forward if we begin acting now, together, to shore up our fragile election ecosystem.”

Unfortunately, I disagree. The fact that there is no path forward unless X, Y, and Z happen does not mean that X, Y, and Z will happen. It could well be that there is no path forward. And no path is likely to be available until a significant portion of the American public fundamentally change their present views about their society and their fellow citizens. Continue reading “No Exit”

The Last Bastion

Posted on Categories Judges & Judicial Process, Legal Profession, PublicLeave a comment» on The Last Bastion

The United States, like most democracies, takes pride in being governed by the “rule of law”; it aspires to be what John Adams once called “a government of laws and not of men.” There’s a sense, in this imagery, that law is something distinct from human beings; that it’s a sort of machine, that operates autonomously to generate answers to legal questions.

Of course, as the legal realists recognized, that’s all transcendental nonsense. Laws do not apply themselves, they are written and interpreted and applied by human beings. But a rule of laws that is subject to the whims of individual decisionmakers is no rule at all. Believing in the rule of law requires a sort of leap of faith. It requires a form of trust that other actors in the system, even ordinary citizens, will generally coalesce around the same outcomes and interpretations.

And that sort of trust — any sort of trust in institutions, including law — is breaking down. Faith in courts to provide the law, and faith in lawyers to be able to say what the law is, will fade with it. And after that, in the words of Felix Frankfurter: “first chaos, then tyranny.” Continue reading “The Last Bastion”

Welcome to Our January Guest Blogger!

Posted on Categories Public, Student ContributorLeave a comment» on Welcome to Our January Guest Blogger!

Our Student Contributor for January is 2L Daniel Kafka. Daniel is a Milwaukee native who grew up in the Story Hill neighborhood, near what some of us still call Miller Park. He is eager to practice litigation, particularly business litigation, but may also harbor an interest in transactional law. His non-legal interests include fantasy novels, disc golf in Estabrook Park, and storyboarding a video game he hopes to create with some friends. He lives with his partner Abigail and his dog Nero (an English Bull Terrier) in the Murray Hill neighborhood. Welcome Daniel!

Welcome to Our December Guest Blogger!

Posted on Categories Public, Student ContributorLeave a comment» on Welcome to Our December Guest Blogger!

Our Student Contributor for December is 3L Matt Rademacher. Matt is originally from Stevens Point, Wisconsin. Before entering law school, he was an Army Engineer; he deployed to Afghanistan in 2010-11 to perform route clearance, and finished his Army career as a Captain. In law school he has developed an interest in municipal law, and outside of the legal realm he enjoys reading about military history, and has been an historical reenactor since roughly age 8. Welcome Matt!

Welcome to Our November Guest Blogger!

Posted on Categories Public, Student ContributorLeave a comment» on Welcome to Our November Guest Blogger!

Our Student Contributor for November is 3L Nicholas Bergosh. Nicholas is from Pensacola, Florida, but was born in San Diego, California, and spent a significant part of his life there. He is interested in business law, but also wants to continue working with a sports agency. He is a sailor in the United States Naval Reserves and plans to reenlist after his contract ends in 2023. Welcome Nicholas!

Welcome to Our October Guest Blogger!

Posted on Categories Public, Student ContributorLeave a comment» on Welcome to Our October Guest Blogger!

After a bit of a hiatus, our guest bloggers are returning! This month we are excited to welcome 3L Vanessa Flores to blog with us as our Student Contributor. Vanessa is originally from Ecuador but called Chicago home before coming to Marquette. She is interested in civil litigation and will be doing that after graduation. When not studying law, Vanessa enjoys spending time with her cats, Simba and Bolt, and exploring Wisconsin with her boyfriend and his dogs. Welcome Vanessa!

Democracy’s Self-Perpetuating Illusion

Posted on Categories Constitutional Interpretation, Election Law, Judges & Judicial ProcessLeave a comment» on Democracy’s Self-Perpetuating Illusion

Can legal formalism help save democracy? That is a question posed by a very interesting draft paper posted by Will Baude of the University of Chicago last week, “The Real Enemies of Democracy.” Baude’s paper is a response to Pam Karlan’s 2020 Jorde Symposium lecture, “The New Countermajoritarian Difficulty,” in which Karlan laments the recent Supreme Court’s failure to take action against anti-majoritarian forces that dilute the votes of, or outright disenfranchise, millions: the Electoral College, the filibuster, campaign finance, gerrymandering, and anti-suffrage laws.

But Baude has his eyes set on a different horizon: “I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard-wired law of succession in office.” And he suggests a different bulwark to hold them back: “The shield against them may be more formalism, not less.”

I agree with Baude’s sense of the threats, but I think the hope that formalism—or even the rule of law generally—will save us is misplaced. It was often said of the Soviet Union that it had an extremely rights-protective constitution; better than that of the United States, even. But of course the problem was that the Communist Party was not really bound by it. Formal guarantees mean nothing without the will to back them up. Law without faith is dead. Continue reading “Democracy’s Self-Perpetuating Illusion”

Welcome to Our October Guest Blogger

Posted on Categories Public, Student ContributorLeave a comment» on Welcome to Our October Guest Blogger

head shot of woman named Liz SimonisOur Student Guest Blogger for October is 2L Liz Simonis. Originally from Milwaukee, Liz spent five years working in agriculture around the Midwest before moving back to the Cream City. Her legal interests are primarily in intellectual property and corporate law, but after spending six months in China, she has developed an interest in water law as well, including its ability to influence international relations. Liz has recently been awarded the AWL Foundation Scholarship by the Association for Women Lawyers. Congratulations Liz!

Marquette University Law School - Contact Us
Marquette University Law School, P.O. Box 1881, Milwaukee, Wisconsin 53201 (414) 288-7090
Street Address: Marquette University Law School, 1215 W. Michigan St., Milwaukee, Wisconsin 53233

About the Blog | Comments Policy

The opinions expressed here are those of the individual authors and do not represent the views of Marquette University or its Law School.