Fair Use: History

DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

Fair Use dates to 1709. In Europe, printing presses had allowed criticism of governments to be easily published, so governments controlled who printed books by requiring official licenses to trade and produce books. When England’s Licensing Act of 1662 expired, a more comprehensive version was drafted.

The Statute of Anne, 1709

The world’s first fully-fledged copyright law was enacted in Britain. Entitled the Copyright Act 1709 it was better known as the Statute of Anne, after the queen at the time.

“An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.”
— The full title of the Statue of Anne, 1709.

The statute, however, gave a legal monopoly to publishers without any exceptions. Even though the stated objective was “the encouragement of learning,” the law favored private over public gain.

Gyles v Wilcox, 1740

In a copyright lawsuit, the concept of legal non-licensed copying was introduced, called the doctrine of fair abridgement. Judge Lord Hardwicke ruled that a book could conceivably be shortened for education to form a new and separate work, provided it was sufficiently different and “fairly made” with honest intentions.

“[Copyright] is far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompence for their pains and labour in such works as may be of use to the learned world.”
— Jurist Lord Hardwicke (Philip Yorke), Gyles v Wilcox, 1740.

Copyright law now had to serve the public interest by promoting the creation of new educational and useful works. Editors became akin to authors, and labor joined originality as a factor in authorship. As recently as 1986, U.S. federal courts have cited the case.

Over time, the concept of fair abridgment evolved and expanded through British and U.S. common law.

U.S. Copyright Act of 1790

America’s first copyright act was, ironically, an almost verbatim copy of Britain’s copyright act.

Folsom v. Marsh, 1841

In Massachusetts, Justice Joseph Story significantly expanded the limitations of copyright law. He also established the four factors for analysis of what is now called fair use.

“[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. …

In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”
— Justice Joseph Story, Folsom v. Marsh, 1841.

Copyright Act of 1976

Fair Use became statutory law in 1976 when it was incorporated into the U.S. legal code, under Title 17, Section 106.

Although the fair use law is less than 200 words long, there are often many questions about it. Let’s review some frequently asked questions about fair use and photography.