Bill Patry

Document Type

Article

Publication Date

2017

Abstract

Commenting on legal debates in other countries is usually bad manners. When, however, the debates concern a law from your own country, and that law is being misrepresented, it may be of service to set the record straight. The record, based on almost 300 years of Anglo-American case law and the experiences of those of us who apply fair use every day in our jobs, demonstrates that fair use is good for creativity and innovation, and in practice works well. You don’t have to take my word for it; if you are willing to put the time in, and have an open mind to learn how fair use actually works, you’ll see.

What follows is a description of the 35 year journey I have undertaken to understand fair use. First, I discuss how it has been common for centuries for our greatest artists to creatively copy from others. Next, I discuss how fair use helps authors to engage in such creative copying, while simultaneously ensuring that those who seek to capitalize on the hard work of others with no social benefit are denied fair use privileges. I then discuss my experiences with fair use as a lawyer, Congressional staffer, and as a law professor. Finally, I dispel a number of the myths about fair use: that it leads to a lot of litigation, is too fact-specific or unpredictable, and is somehow peculiar to the American legal system much like vegemite is to the Australian palate.

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