by Yonatan She­fa1

While copy­right law pro­vides pro­tec­tion for the intel­lec­tu­al prop­er­ty rights of copy­right hold­ers, those pro­tec­tions are not absolute.2 Courts have long rec­og­nized the affir­ma­tive defense of fair use in infringe­ment cas­es, and in 1976, Con­gress cod­i­fied that defense.3 In mak­ing fair use deter­mi­na­tions, courts bal­ance four fac­tors: the pur­pose and char­ac­ter of the use; the nature of the copy­right­ed work; the amount and sub­stan­tial­i­ty of the por­tion used in rela­tion to the copy­right­ed work as a whole; and the effect of the use upon the poten­tial mar­ket for or val­ue of the copy­right­ed work.4 The Supreme Court in Harp­er & Row, Publrs. v. Nation Enters referred to the fourth and last fac­tor – the effect on the poten­tial mar­ket – as the sin­gle most impor­tant of the four fac­tors.5

Under the fourth fac­tor, courts are to con­sid­er mar­ket harms to the orig­i­nal cre­ator.6 In one sense, the inquiry is broad, in that it extends beyond actu­al harm. The statute and courts make clear that the analy­sis looks at the adverse impact to both the actu­al and poten­tial mar­ket to the orig­i­nal work.7 How­ev­er, the inquiry is lim­it­ed to harms felt in the mar­ket. In oth­er words, the court is con­cerned with the orig­i­nal artist’s abil­i­ty to make a prof­it from the works that artist cre­at­ed.8 Yet, cer­tain aca­d­e­mics have argued that copy­right law, fair use includ­ed, should con­sid­er oth­er harms as well, because cre­ators are incen­tivized by more than just prof­its.9 This is sig­nif­i­cant, con­sid­er­ing that copy­right law as a whole has its roots in the Pro­gres­sive Clause10 of the Con­sti­tu­tion, which seeks to ensure that the law cre­ates incen­tives for cre­ation. These aca­d­e­mics ref­er­ence research indi­cat­ing that mon­e­tary incen­tives for cre­ation are often sec­ondary at best.11 Rather, cre­ation is dri­ven by a host of incen­tives, includ­ing desire and cul­tur­al engage­ment.12 Addi­tion­al­ly, copy­right hold­ers often sue infringers for non-eco­nom­ic rea­sons, such as a feel­ing that the infring­ing use is unfair or immoral.13 There­fore, if copy­right law is con­cerned with incen­tiviz­ing cre­ation, these schol­ars con­clude that it should address non-pecu­niary harm to copy­right hold­ers by fac­tor­ing in notions of fair­ness and jus­tice, not just eco­nom­ic harm.14 This arti­cle refers to these non-mar­ket harms as “moral harms.” Even if the research is cor­rect, how­ev­er, this Con­tri­bu­tion will argue that, with­in the con­text of fair use, courts and pol­i­cy­mak­ers should con­tin­ue to focus on mon­e­tary mar­ket harms in order to pre­serve the long his­to­ry of the fair use doc­trine, to uphold fair use’s goals of pro­tect­ing the First Amend­ment and pro­vid­ing more works for the pub­lic, and, prac­ti­cal­ly speak­ing, to allow for a more fact inten­sive inquiry. At the very least, courts can­not change course unless so instruct­ed by Congress.

* * * * *

The fair use doctrine’s exclu­sive focus on mar­ket harms is deeply root­ed in this country’s jurispru­dence.15 Jus­tice Sto­ry, in his emi­nent 1841 opin­ion in Fol­som v. Marsh, instruct­ed courts to con­sid­er whether the sec­ondary work “may prej­u­dice the sale, or dimin­ish the prof­its” of the orig­i­nal work.16 This remained the focus of the fair use doc­trine, which exist­ed as a court cre­at­ed doc­trine until 1976 when Con­gress cod­i­fied fair use in the Copy­right Act.17 In fact, Jus­tice Story’s hold­ing in Fol­som is in large part restat­ed in §107, and Con­gress in House and Sen­ate reports spec­i­fied its intent to main­tain the fair use doc­trine as cre­at­ed by the com­mon law.18

In any event, Con­gress made clear in the text of §107 that the fair use inquiry is focused on mar­ket harms, and courts have con­tin­ued to focus on the same. In fact, in the over­all copy­right scheme, Con­gress has steered clear of any focus on moral rights or harms. The one nar­row excep­tion is found in the Visu­al Artists Rights Act, which allows the author of a visu­al work of art that exists in a very small quan­ti­ty to pre­vent inten­tion­al dis­tor­tion or mod­i­fi­ca­tion of that work which would prej­u­dice the author’s rep­u­ta­tion.19 How­ev­er, this statute is very lim­it­ed in scope, has rarely been invoked, and still only pro­vides mar­ket-based reme­dies.20 More impor­tant­ly, in lim­it­ing its atten­tion to moral harms in this one lim­it­ed cir­cum­stance, Con­gress evi­dent­ly intend­ed to exclude it else­where.21 The Visu­al Artists Rights Act aside, moral rights and harms remain absent from copy­right law.22 Indeed, in the con­text of fair use, the Supreme Court in Camp­bell23 stat­ed explic­it­ly that when a par­o­dy, a com­mon sub­ject of fair use, kills demand for the orig­i­nal – which most cer­tain­ly would be a moral harm – “it does not pro­duce a harm cog­niz­able under the Copy­right Act.”24

One bor­der­line excep­tion is that some courts might be recep­tive to claims of rep­u­ta­tion­al harm. For exam­ple, in one such case, the Cal­i­for­nia Cen­tral Dis­trict Court found harm where a Hon­da com­mer­cial made use of the James Bond fran­chise.25 Plain­tiffs argued, and the court agreed, that an impor­tant aspect of the James Bond per­sona is his asso­ci­a­tion with high class.26 There­fore, the use of James Bond in a low-end car com­mer­cial might have harmed the rights holder’s abil­i­ty to license out the char­ac­ter to high-end licensees.27 How­ev­er, the Supreme Court has made it clear that rep­u­ta­tion­al dam­age is of no con­se­quence.28 Addi­tion­al­ly, even when courts do con­sid­er harm to rep­u­ta­tion, as in the James Bond exam­ple, those harms are still direct­ly tied to harms felt in the mar­ket, as dis­tin­guished from non-pecu­niary rep­u­ta­tion­al harm. There­fore, while rep­u­ta­tion­al harms might sit on ground slight­ly clos­er to moral harm, they are still only rec­og­nized to the extent they con­sti­tute mar­ket harms as well.

Some, how­ev­er, have sug­gest­ed that courts may in fact con­sid­er moral harms in cer­tain cas­es.29 For exam­ple, in Mon­ge v. Maya, the Ninth Cir­cuit denied a find­ing of fair use where a mag­a­zine pub­lished pic­tures from the wed­ding of celebri­ties who wished to keep their wed­ding secret.30 The Ninth Cir­cuit reached this con­clu­sion even though there was a ten­u­ous poten­tial for mar­ket harm, per­haps overex­tend­ing the poten­tial mar­ket harm stan­dard. The court ulti­mate­ly rea­soned that there was mar­ket harm because the celebri­ty cou­ple could have changed their mind and prof­it­ed from sell­ing their wed­ding pic­tures.31 There­fore, the court’s deci­sion was still ground­ed in poten­tial prof­it loss­es. While moral harms may or may not oper­ate in the back­ground of such a case, the express con­cern is still strict mar­ket harm, even if that harm appears tenuous.

* * * * *

Thus, the his­to­ry of both copy­right law and fair use estab­lish that courts should be pri­mar­i­ly, if not exclu­sive­ly, con­cerned with pecu­niary harm to authors. Fur­ther, regard­less of the moti­va­tions of authors, both courts and Con­gress should con­tin­ue to focus on mar­ket harms with­in the fair use frame­work for four pri­ma­ry pol­i­cy reasons.

First, the doc­trine of stare deci­sis mil­i­tates against the con­sid­er­a­tion of moral harms. Not only has fair use long exclud­ed moral harms, it has been absent from the analy­sis since the cre­ation of the doc­trine.32 As the Supreme Court has not­ed, the appli­ca­tion of stare deci­sis is the “pre­ferred course because it pro­motes the even­hand­ed, pre­dictable, and con­sis­tent devel­op­ment of legal prin­ci­ples, fos­ters reliance on judi­cial deci­sions, and con­tributes to the actu­al and per­ceived integri­ty of the judi­cial process.”33 It car­ries par­tic­u­lar weight when pri­or deci­sions have inter­pret­ed statutes, because those deci­sions “become part of the statu­to­ry scheme, sub­ject (just like the rest) to con­gres­sion­al change.”34 There­fore, at the very least, courts must await a change of course by Con­gress before tak­ing moral harms into con­sid­er­a­tion. Con­gress, in turn, would be wise to con­tin­ue the sta­tus quo for the sake of con­sis­ten­cy and reliance, as well as for the rea­sons dis­cussed below.

Sec­ond, fair use as a doc­trine plays an impor­tant role as a First Amend­ment safe­ty valve with­in the copy­right scheme.35 Copy­right hold­ers are grant­ed a bun­dle of rights to pre­vent oth­ers from mis­ap­pro­pri­at­ing their works. How­ev­er, fair use rec­og­nizes that sec­ondary cre­ators have the right to free­dom of expres­sion, which allows those sec­ondary cre­ators to pro­vide impor­tant crit­i­cism and com­ment on the cre­ations of oth­ers by includ­ing or ref­er­enc­ing the orig­i­nal in their works.36 By tak­ing moral harm into account, this First Amend­ment pro­tec­tion would be great­ly frus­trat­ed.37 To be cer­tain, plain­tiffs are often moti­vat­ed by moral harms when they choose to bring a suit.38 If courts begin to rec­og­nize these harms, they would effec­tive­ly be adding a weight on the scale in favor of plain­tiffs. In many cir­cum­stances, this weight would be dia­met­ri­cal­ly counter to the val­ue of free expres­sion. For exam­ple, imag­ine a singer writes a song with racist over­tones. Because of fair use, anoth­er singer could make use of the first singer’s com­po­si­tion to cre­ate a par­o­dy to cri­tique the orig­i­nal. This is cer­tain­ly a valu­able use of free­dom of expres­sion. How­ev­er, the larg­er the cri­tique and attack on the orig­i­nal, the larg­er the moral harm felt by the orig­i­nal artist is like­ly to be. There­fore, effec­tive and social­ly valu­able cri­tique would be worse off in the analy­sis than a mod­est critique.

Addi­tion­al­ly, the progress of the arts would be impaired if courts were to start con­tem­plat­ing moral harms. Schol­ars point to the Progress Clause as a check on the overex­ten­sion of copy­rights because it cre­ates an imper­a­tive for Con­gress, in its enact­ment of intel­lec­tu­al prop­er­ty laws, to pri­or­i­tize the public’s inter­est in access to more cre­ative out­put.39 This imper­a­tive is par­tic­u­lar­ly preva­lent in fair use doc­trine, which is espe­cial­ly con­cerned with enabling a sec­ondary mar­ket of cre­ators, despite the gen­er­al rights of orig­i­nal cre­ators. Because of the preva­lence of moral issues in infringe­ment suits lead­ing to fair use defens­es, and the ease with which a moral harm could be assert­ed, the pub­lic would unques­tion­ably end up with dimin­ished access to a sec­ondary mar­ket, and thus less cre­ative works over­all, con­trary to the goal of the Progress Clause. This is espe­cial­ly true giv­en the lim­it­ed nature of tru­ly orig­i­nal works. As Jus­tice Sto­ry stat­ed in his oft quot­ed obser­va­tion, “[t]here are, and can be, few, if any, things, which in an abstract sense, are strict­ly new and orig­i­nal through­out. Every book in lit­er­a­ture, sci­ence and art, bor­rows, and must nec­es­sar­i­ly bor­row, and use much which was well known and used before.”40 Because so much cre­ation is sec­ondary in some sense, the Supreme Court has coun­seled courts to avoid apply­ing copy­right law in a man­ner that would “sti­fle the very cre­ativ­i­ty which that law is designed to fos­ter.”41 Giv­ing pref­er­ence to the incen­tives of orig­i­nal authors over those of sec­ondary authors runs con­trary to this impor­tant pro­gres­sive aim of the fair use doc­trine.42

Final­ly, moral harms are dif­fi­cult to mea­sure. A focus on pecu­niary harms has the ben­e­fit of being a fact-based inquiry. For exam­ple, in Camp­bell, the issue to be addressed on remand was whether or not the own­er to the rights of the song “Oh, Pret­ty Woman” could estab­lish that 2 Live Crew’s “Pret­ty Woman” served as a mar­ket sub­sti­tute for a rap deriv­a­tive of the orig­i­nal.43 Such a deter­mi­na­tion could be reached by fact find­ers after they con­sid­er the evi­dence intro­duced by the par­ties. Moral harms, on the oth­er hand, are easy to allege but dif­fi­cult to quan­ti­fy and prove. If fact-find­ers were to con­sid­er moral harms, their ver­dicts would be swayed by their per­son­al feel­ings of jus­tice as it relates to the poten­tial­ly infring­ing activ­i­ty, rather than being root­ed in the evi­dence prof­fered. There­fore, fair use should remain focused on mar­ket harms, which could be proven in eco­nom­ic terms, and lends itself to a more objec­tive ruling.

* * * * *

There is val­ue in con­ti­nu­ity with­in the legal sys­tem. That courts have for so long focused the fair use inves­ti­ga­tion on mar­ket harms is not mere­ly the prod­uct of iner­tia, but of a care­ful­ly craft­ed doc­trine. Courts have been true to the pri­ma­ry goals of fair use, and as a mat­ter of pol­i­cy, the con­sid­er­a­tion of mar­ket harms is more in line with the con­sti­tu­tion­al aims of the fair use doc­trine. Addi­tion­al­ly, mar­ket harm is arguably the most sig­nif­i­cant fair use con­sid­er­a­tion. Such a dra­mat­ic depar­ture from over a cen­tu­ry and a half of jurispru­dence might throw off the bal­ance of the analy­sis and lead to an unpre­dictable doc­trine in such a man­ner that courts and law­mak­ers should avoid. 


1. Yonatan She­fa is a 3L at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the 2018 prob­lem at the BMI Enter­tain­ment and Media Law Moot Court Com­pe­ti­tion, pre­sent­ed by the Ben­jamin N. Car­do­zo School of Law in New York, NY. The issue in the prob­lem dealt with whether a par­o­dy qual­i­fied as fair use. The views expressed in this piece do not nec­es­sar­i­ly reflect those of the author on this point of law. Rather, this expo­si­tion is meant to be a dis­til­la­tion of a sin­gle side of the argu­ment reflect­ed with­in the competition.

2. E.g. 17 U.S.C §§ 107–22 (2018).

3. 4 Melville B. Nim­mer and David Nim­mer, Nim­mer on Copy­right § 13.05 (2018).

4. 17 U.S.C. § 107 (2018).

5. Harp­er & Row, Publrs. v. Nation Enters., 471 U.S. 539, 566 (1985).

6. 17 U.S.C. § 107(4) (2018).

7. E.g., Camp­bell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (“It [the fourth fac­tor] requires courts to con­sid­er not only the extent of mar­ket harm caused by the par­tic­u­lar actions of the alleged infringer, but also ‘whether unre­strict­ed and wide­spread con­duct of the sort engaged in by the defen­dant . . . would result in a sub­stan­tial­ly adverse impact on the poten­tial mar­ket’ for the orig­i­nal.”) (empha­sis added) (quot­ing 4 Melville B. Nim­mer and David Nim­mer, Nim­mer on Copy­right § 13.05[A][4] (Matthew Ben­der, Rev. Ed.)).

8. See, e.g., Nim­mer and Nim­mer, supra note 3, § 13.05[4] (“The fourth fac­tor looks to adverse impact only by rea­son of usurpa­tion of the demand for plaintiff’s work.”).

9. E.g. Christo­pher Buc­ca­fus­co and David Fagun­des, The Moral Psy­chol­o­gy of Copy­right Infringe­ment, 100 Minn. L. Rev. 2433, 2441–46 (2016).

10. U.S. Con­st., art. I, § 8, cl. 8.

11. Buc­ca­fus­co and Fagun­des, supra note 9, at 2449.

12. Id.

13. Id. at 2451–52.

14. For exam­ple, in the BMI Moot Court com­pe­ti­tion, the copy­right hold­er object­ed to a par­o­dy of his song for reli­gious rea­sons and because it tar­nished his rep­u­ta­tion in his community.

15. In fact, this focus pre­cedes the devel­op­ment of fair use by the courts. The British pre­cur­sor to the copy­right clause on which ear­ly copy­right law was based, the Statute of Anne of 1709, is like­wise pri­mar­i­ly con­cerned with the finan­cial enti­tle­ments of author­ship. Sim­i­lar­ly, the Progress Clause of the U.S. Con­sti­tu­tion only grants an exclu­sive right to authors and inven­tors for a lim­it­ed time. This lim­it­ed right sug­gests that it was not intend­ed to be a moral right. See Pierre N. Lev­al, Toward A Fair Use Stan­dard, 103 Harv. L. Rev. 1105, 1108 (1990).

16. Fol­som v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901) (empha­sis added).

17. See Lev­al, supra note 15, at 1105.

18. Camp­bell, 510 U.S. at 577.

19. 17 U.S.C. § 106A (2018).

20. Buc­ca­fus­co and Fagun­des, supra note 9, at 2447.

21. Id.

22. Gilliam v. ABC, 538 F.2d 14, 24 (2d Cir. 1976) (“Amer­i­can copy­right law, as present­ly writ­ten, does not rec­og­nize moral rights or pro­vide a cause of action for their vio­la­tion, since the law seeks to vin­di­cate the eco­nom­ic, rather than the per­son­al, rights of authors.”).

23. Camp­bell is the Supreme Court’s most recent and sig­nif­i­cant fair use case expound­ing on the fair use fac­tors. It involved the rights own­er of a famous song suing a rap group for using aspects of the orig­i­nal in their par­o­dy. In addi­tion, the case is par­tic­u­lar­ly rel­e­vant to the issue of moral harms, in that it address­es parody’s claim to fair use, and par­o­dy cas­es are par­tic­u­lar­ly ripe for the exis­tence of moral harms because a par­o­dy not only copies the orig­i­nal, but gen­er­al­ly attacks it as well. 

24. Camp­bell, 510 U.S. at 591–92.

25. Metro-Gold­wyn-May­er, Inc. v. Am. Hon­da Motor Co., 900 F. Supp. 1287, 1300 (C.D. Cal. 1995).

26. Id.

27. Id.

28. See, e.g., Camp­bell at 592 (dis­tin­guish­ing between “reme­di­a­ble dis­place­ment and unre­me­di­a­ble disparagement.”).

29. See, e.g., Buc­ca­fus­co and Fagun­des, supra note 9, at 2454.

30. Mon­ge v. Maya Mag­a­zines, 688 F.3d 1164, 1179 (9th Cir. 2012).

31. Id. at 1182.

32. See Fol­som v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901).

33. Kim­ble v. Mar­vel Ent­m’t, 135 S. Ct. 2401, 2409 (2015) (quot­ing Payne v. Ten­nessee, 501 U.S. 808, 827–28 (1991)).

34. Id.

35. See Harp­er & Row, Publrs., 471 U.S. at 560.

36. Sun­Trust Bank v. Houghton Mif­flin Co., 268 F.3d 1257, 1264 (11th Cir. 2001).

37. Notably, the Supreme Court has on more than one occa­sion shrugged off First Amend­ment chal­lenges to copy­right law. See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 219 (2003). That is because copy­right pro­vides an inter­nal sys­tem to pro­tect­ing the First Amend­ment, which con­sists of a robust fair use defense. See id. at 789. How­ev­er, weak­en­ing that defense by way of con­sid­er­ing moral harm to plain­tiffs would call into ques­tion whether copy­right law con­tin­ues to prop­er­ly safe­guard the First Amend­ment, and would open the Court up to legit­i­mate chal­lenges to its pri­or jurisprudence.

38. See e.g. Buc­ca­fus­co and Fagun­des, supra note 9, at 2498.

39. Id. at 2498–99.

40. Camp­bell, 510 U.S. at 575 (quot­ing Emer­son v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436)).

41. Id. at 577 (quot­ing Stew­art v. Abend, 495 U.S. 207, 236 (1990)).

42. Impor­tant­ly, pri­ma­ry and sec­ondary users are not nec­es­sar­i­ly two dis­tinct groups. The same author who writes some­thing orig­i­nal might lat­er bor­row from else­where and vice ver­sa. There­fore, even though cre­ators might respond to the incen­tive of a legal land­scape that they see as moral, that same incen­tive could lat­er backfire.

43. Camp­bell, 510 U.S. at 593.