Journal
Cornell Law Review
Volume
111
Abstract
This Article traces the intellectual history of copyright law’s fair use doctrine at the Supreme Court from its first encounter with fair use to its landmark decision slightly more than three decades ago in Campbell v. Acuff-Rose Music, Inc. Campbell provided courts with a coherent, user-centered theory for applying the four statutory fair use factors provided under 17 U.S.C. § 107, a standard the Court recently ratified in Google LLC v. Oracle Am., Inc. and Andy Warhol Foundation for the Visual Arts v. Goldsmith. As one of three related articles, this Article advances two principal claims to contribute to the intellectual history of fair use.
This Article demonstrates how contested the role of fair use in copyright law had been both before and after Congress codified the doctrine in 1976 until Campbell. Some parties and Justices treated fair use as a narrow doctrine, limited by presumptions against its application. Others understood the doctrine to be a central counterbalance to copyright law’s exclusive rights. By carefully analyzing the Court’s fair use jurisprudence up to, and including, Campbell, this Article shows that the Court and counsel appearing before it went through a learning process about fair use. In particular, until Campbell, the Court had not fully appreciated the impact of fair use’s codification or the need for the Court to provide lower courts with a coherent theory for applying the four fair use factors in § 107.
This Article’s second claim rebuts recent attempts by some courts and commentators to construe Campbell narrowly in the wake of the Court’s Warhol decision. As of this writing, these revisionist arguments have been submitted in two currently pending appellate cases, one in the Ninth Circuit and the other in the Tenth Circuit. By analyzing both the public filings and the now-public internal case files of some of the Justices, this Article provides several new insights to support the case for reading Campbell capaciously. Indeed, Campbell’s adoption of the transformative use standard reflects the hard-won triumph of an important idea about the role of fair use in copyright law.
Repository Citation
Michael W. Carroll & Peter Jaszi,
Campbell at 30: A Retrospective Appreciation,
111
Cornell L. Rev.
(2026).
Available at:
https://digitalcommons.wcl.american.edu/facsch_lawrev/2321