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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How the Cookie Crumbles: The #UtahCookieWars

Besides offering delicious cookies that can be delivered straight to your door, Crumbl Cookie is bringing some interesting legal content to the news by filing trade dress infringement lawsuits against two other cookie companies. Crumbl claims that two smaller Utah business, Dirty Dough and Crave Cookies, are using packaging, logos, and designs that are confusingly similar to that of Crumbl, which could constitute infringement under the Lanham Act. In reference to Dirty Dough in particular, Jason McGowan, co-founder and CEO of Crumbl Cookies, posted on LinkedIn on August 29, 2022, alleging that “Dirty Dough has stolen trade secrets from Crumbl’s internal database,” including recipes, building schematics, statistics, training videos, and more. As redress, Crumbl is seeking monetary and injunctive relief in the District of Utah.

Adding another dimension to Crumbl’s allegations, Dirty Dough’s founder was a former Crumbl employee, and the owner of Crave Cookies had previously had their application to become a Crumbl franchisee rejected. Both individuals, Crumbl alleged, took Crumbl’s packaging, marketing, advertising, and presentation in an attempt to profit off of Crumbl’s trade dress and brand identity.

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