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500 LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE
The approach followed by Judges Newman and Leval in the American
Geophysical litigation is fully consistent with the Supreme Court case law. In Harper &
Row, where there is no indication in the opinion that the challenged use caused any
diminution in sales of President Ford’s memoirs, the Court found harm to the market for
the licensing of excerpts. The Court’s reasoning—which was obviously premised on the
assumption that the copyright holder was entitled to licensing fees for use of its
copyrighted materials—is no more circular than that employed here. And in Campbell,
where the Court was unwilling to conclude that the plaintiff had lost licensing revenues
under the fourth statutory factor, the Court reasoned that a market for critical parody was
not one “that creators of original works would in general develop or license others to
develop.” Campbell, 510 U.S. at 592.
The potential uses of the copyrighted works at issue in the case before us clearly
include the selling of permission to reproduce portions of the works for inclusion in
coursepacks—and the likelihood that publishers actually will license such reproduction
is a demonstrated fact. A licensing market already exists here, as it did not in a case on
which the plaintiffs rely, Williams & Wilkins Co. v. United States, 487 F.2d 1345 (1973).
Thus there is no circularity in saying, as we do say, that the potential for destruction of
this market by widespread circumvention of the plaintiffs’ permission fee system is
enough, under the Harper & Row test, “to negate fair use.”
Our final point with regard to the fourth statutory factor concerns the affidavits of
the three professors who assigned one or more of the copyrighted works to be read by
their students. The defendants make much of the proposition that these professors only
assigned excerpts when they would not have required their students to purchase the entire
work. But what seems significant to us is that none of these affidavits shows that the
professor executing the affidavit would have refrained from assigning the copyrighted
work if the position taken by the copyright holder had been sustained beforehand.
It is true that Professor Victor Lieberman, who assigned the excerpt from the Olson
and Roberts book on America and Vietnam, raises questions about the workability of the
permission systems of “many publishers.” In 1991, Professor Lieberman avers, a Kinko’s
copyshop to which he had given materials for inclusion in a coursepack experienced
serious delays in obtaining permissions from unnamed publishers. Professor Lieberman
does not say that timely permission could not have been obtained from the publisher of
the Olson and Roberts book, however, and he does not say that he would have refrained
from assigning the work if the copyshop had been required to pay a permission fee for it.
It is also true that the publisher of one of the copyrighted works in question here
(Public Opinion, by Walter Lippmann) would have turned down a request for permission
to copy the 45-page excerpt included in a coursepack prepared to the specifications of
Professor Donald Kinder. The excerpt was so large that the publisher would have
preferred that students buy the book itself, and the work was available in an inexpensive
paperback edition. But Professor Kinder does not say that he would have refrained from
assigning the excerpt from the Lippmann book if it could not have been included in the
coursepack. Neither does he say that he would have refrained from assigning any of the
other works mentioned in his affidavit had he known that the defendants would be
required to pay permission fees for them.
The third professor, Michael Dawson, assigned a 95-page excerpt from the book
on black politics by Nancy Weiss. Professor Dawson does not say that a license was not
available from the publisher of the Weiss book, and he does not say that the license fee
would have deterred him from assigning the book.