Fair Use Jurisprudence 2019–2021

By Jack Lerner, Luke Hartman, and Jordin Wilcher

Cross-posted at https://ipat.law.uci.edu/fairuse2021

We are excited to celebrate Fair Use Week with a new report from the UC Irvine Intellectual Property, Arts, and Technology (IPAT) Clinic: Fair Use Jurisprudence 2019–2021: A Comprehensive Review. The report presents the results of an exhaustive study of recent fair use opinions issued by US federal courts in copyright infringement cases.

Copyright covers a huge range of expressive activity and is automatic. Just about anyone who wants to do more than read, watch, or use a work relies on the doctrine of fair use in order to avoid liability for copyright infringement. The US Supreme Court has referred to fair use as a sort of safety valve that provides breathing space allowing copyright to coexist with freedom of expression. And it is an evolving doctrine; disputes concerning fair use are constantly working their way through the American legal system, but the vast majority of cases don’t make the news despite their importance to creative expression and innovation.

At the UC Irvine IPAT Clinic, we work with independent filmmakers to make sure that when they do need to make fair use, they can do so responsibly, appropriately, and safely. Over the past couple of years, our Filmmaker Counseling team began to hear of a rising number of fair use opinions coming out of the federal courts, and we decided to embark on an exhaustive study of recent fair use decisions in copyright infringement cases. In total, we identified and analyzed 72 opinions issued by federal courts and made available on Westlaw or Lexis between January 1, 2019, and February 25, 2021. In our report, we provide abstracts of 72 opinions along with some commentary on selected cases. We have also prepared a table of these cases.

We were surprised by the sheer volume of fair use opinions, but our analysis yielded a few interesting insights.

First, there are a lot of fair use cases involving photographs. Of the 72 opinions made available on Lexis or Westlaw, over half were about photographs—37 in total. Of these, 22 were from either repeat plaintiffs David Oppenheimer (2) and Larry Philpot (1) or from plaintiffs’ attorneys Richard Leibowitz (16) and Higbee and Associates (3) who file a high volume of cases. (The question of whether these repeat filers are a problem is for another report; we note, however, that three separate judges in this set of opinions made reference to misconduct by Richard Liebowitz. In any event, it is quite clear that the cases in this report represent a tiny fraction of the photography cases being filed annually in recent years.)

What do these cases mean for the doctrine of fair use? The results are mixed. Some suits never should have been brought because the fair use was so clear—while in other cases, the defendant perhaps should have thought twice before asserting their fair use defense. Also, social media can complicate the analysis; the judges in the Southern District of New York are having an interesting conversation across cases about what it means to embed an Instagram post (presumably licensed via Instagram’s API terms of use) versus just displaying the picture used in the post.

Second, there were very few cases dealing with technology. Aside from a case involving a long-running dispute between Oracle and Rimini, Rimini St. v. Oracle Int’l Corp., 473 F. Supp. 3d 1158 (D. Nev. 2020), and a case involving Zillow, there were almost no reported fair use cases dealing with technology issues—the last two years have not seen a Sega v. Genesis or an Authors Guild v. Google. Of course, we are awaiting the Supreme Court decision in Google v. Oracle, but the last 26 months have been surprisingly quiet.

We hope you find this report useful and interesting; it is freely available to use and share under a Creative Commons Attribution-ShareAlike 4.0 International License.

Jack Lerner
Director, UCI Intellectual Property, Arts, and Technology Clinic

Luke Hartman
UCI Law JD Candidate, 2021

Jordin Wilcher
UCI Law JD Candidate, 2021