Fair Use and Fair Abridgment

Unlike Athena, the doctrine of fair use didn't spring forth fully formed out of Zeus's head. Instead, it was gradually patched together by English common law judges, trying to interpret the 1710 Statute of Anne. That statute, much like our constitutional clause, had a goal of encouraging learning. And, like our 1790 Copyright Act, the Statute of Anne granted an exclusive right to reproduce the work without any limitations. What were courts to do when there was an unauthorized use that was less than verbatim, one that could not easily be deemed a "copy?" (The concept of "copy" as referring to the allegedly infringing work and not to the physical manuscript is a very late usage. In an 1853 case involving an unauthorized German translation of "Uncle Tom's Cabin," Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853), the court held there was no liability because the words weren't actually copied; this was reversed, but only legislatively in the 1870 Copyright Act).

The English courts excused, on policy grounds, reviews, quotations, satires and the like under what we would today call fair use, but they also created a closely related exception called "fair abridgment." We would call a fair abridgment an infringing derivative work today, although it is only since 1909 that there was a general derivative right in the United States. Fair abridgments were recognized as early as 1740. For example, in Dodsley v. Kinnersley, Amb. 403 (1761), plaintiff was the assignee of Samuel Johnson, and published a two-volume edition of Johnson's fiction. Defendant printed one-tenth of this work in a magazine. The Master of Rolls said, in language strongly reminiscent of that found in modern copyright cases, "No certain line can be drawn, to distinguish a fair abridgment; but every case must depend on its own facts." Defendant won.

The more famous formulation is that of Lord Ellenborough in Cary v. Kearsley, 4 Esp. 168 (1803): "That part of a work of one author is found in another, is not itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another's labours for the promotion of science, and the benefit of the public. ... While I shall think myself bound to secure in every man the enjoyment of his copyright, one must not put manacles on science."

Cary v. Kearsley and fair abridgment cases were adopted in the United States, even though concern was expressed about loss of both the original and derviative markets, see Lawrence v. Dana, 15 F. Cas. 26 (C.C.D. Mass. 1869). And there was good reason to be worried about market impact in eras on rampant piracy. In his epic 1998 book, The Nature of the Book: Print and Knowledge in the Making, University of Chicago professor Adrian Johns details the period in the late 17th century when abridgments came out so quickly that the original could not compete. Samuel Johnson's only advice (which the Dodsley case above illustrates was sound) was to abridge the abridgements. (He also advocated donating any profits from the abridgment to the abridgment to penitent prostitutes. Johns page 456). Another problem with abridgments was their distortion of the author's meaning, and this was a serious issue, especially with scientific works like those of Newton, which existed in many unauthorized and inaccurate versions.

The line between fair use and fair abridgment was thin, though, as noted by Judge Jon Newman in Twin Peaks Prods. Inc. v. Publications International, Ltd., 996 F.2d 1366, 1375 (2d Cir. 1993): "Interestingly, the origin of the fair use doctrine is closely connected to abridgments, and early cases went so far as to suggest that an abridgment always constitutes fair use, at least one that is 'a real and fair abridgment' displaying 'the invention, learning, and judgment' of the abridger, and not merely an instance of a work that has been "colourably shortened." See Gyles v. Wilcox, 26 Eng. Rep. 489, 490, 2 Atk. 141, 143 (1740) (No. 130). "

In the current climate of one note constituting infringement of a sound recording, one wonders whether we have lost sight of the principles that seemed so clear to English judges of yore. This is not say that abridgments of the kind that bedevilled Samuel Johnson and Newton should be encouraged, but somewhere along the way, and quite recently, we adopted a very different view of intellectual property, one in which those who use parts of a work are per se deemed infringers unless they can skate through on some "technicality," like fair use, and only rarely then in order not to disturb property rights.