Folsom v. Marsh

Folsom v. Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841) is a 19th-century US copyright case, widely regarded as the first "fair use" case in the United States. The opinion was written by Judge Joseph Story, who set forth four factors that are in use today, and were ultimately encoded in the Copyright Act of 1976 as 17 U.S.C. § 107.

The Reverend Charles Wentworth Upham, a writer and anthologist, had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The work was published by Bela Marsh, of Marsh, Capen, and Lyon.

The publisher Charles Folsom, of Folsom, Wells and Thurston, who had published the first set of letters (a twelve-volume edition edited by Jared Sparks), sued for "piracy of the copyright". The defendant argued that the papers were not copyrightable because, as the letters of a deceased author, they were not private property and not "proper subjects of copyright"; that even if copyrightable, as works of the President they belonged to the United States; and lastly, that their use was fair, because it was the creation of an essentially new work.

Judge Story famously commented that,

"Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent."

The court said first, that the letters were in fact copyrightable subject matter, and that taking even abridged and select portions could be infringement:

"It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto."

This holding effectively expanded copyrightable subject matter significantly, by permitting derivative works to be considered one of the rights of the copyright holder. At the time that Upham had created his collection, abridgments of existing works were not considered infringements.

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