Folsom v. Marsh

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Folsom v. Marsh was a seminal 1841 case in United States Fair use copyright law which established the four factors for analysis later set out in the United States Copyright Act of 1976 Title 17 U.S.C. Section 107 -> "Limitations on exclusive rights: Fair use."

The case was decided by Justice Story, and was reported by his son William Wetmore Story. It concerned a complaint about a 2 volume biography of George Washington making use of his papers and letters which had been extracted (copied) from a much larger 12 volume work.

What the case was about

Justice Story briefly set out the facts in the second paragraph of his judgment. The case concerned two works about President Washington, one derivative of the other. The first was a major 12 volume work by Jared Sparks - being a biography of George Washington (from which no copying was alleged) and 11 supplemental volumes containing his writings and letters etc. with explanatory notes and some illustrations. There were nearly 7000 pages in total in all the 12 volumes.

The defendants wrote a shorter 2 volume biography of Washington intended for less specialized readers, which consisted of 866 pages written by Rev Charles Upham. It told George Washington's story as a narrative, using letters and papers taken from the last 11 volumes of the work by Mr Sparks. It was found that about 353 of its 866 pages were letters and other such papers copied verbatim from the earlier work.

Points which were considered - what constitutes fair use

Justice Story begins his judgment with some general comments on Copyright law:

"..Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent. .."
" one can doubt that 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. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A wide interval might, of course, exist between these two extremes, calling for great caution and involving great difficulty, where the court is approaching the dividing middle line which separates the one from the other. So, it has been decided that a fair and bonbona fide abridgment of an original work, is not a piracy of the copyright of the author. ...... But, then, what constitutes a fair and bonbona fide abridgment, in the sense of the law, is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion. It is clear, that a mere selection, or different arrangement of parts of the original work, so as to bring the work into a smaller compass, will not be held to be such an abridgment. There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work. .."