court had to look at three things: (1) the nature and objects of the selection, (2) the quantity and value of the materials used, and (3) the degree in which the use may prejudice the work, diminish the author’s profits, or supersede the objects of the original work. After examining these factors, Justice Story concluded that Upham’s use was not fair.
Fair use remained exclusively within the judiciary until Congress codified it in the 1976 Copyright Act. Congress understood the complexity of legislating fair use; the legislative history notes that Congress intended to restate the fair use doctrine as it had developed in the courts, not to change, narrow, or enlarge it.[1] Recognizing the difficulty in defining fair use, the House Judiciary Committee wrote
Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.[2]
Fair use, then, is an equitable concept that attempts to balance the rights of copyright owners with the needs of those who use copyrighted works. The courts ultimately determine which uses are “fair uses.” American jurisprudence is guided by precedent, and a court deciding a case today will look at earlier decisions involving similar facts and issues for guidance. But because fair use determinations are fact-specific, it is difficult to generalize what is, and what is not, fair. A federal appellate court wrote in 1939 that “the issue of fair use … is the most troublesome in the whole law of copyright.”[3] That is no less true today. The Judiciary Committee noted the freedom courts have in deciding whether a particular use 1s fair. It wrote
