Does Fair Use Matter? An Empirical Study of Music Cases (forthcoming)

Copyright law recognizes fair use as a general limitation. It is assumed that fair use provides breathing room above and beyond the determination of infringement to facilitate the creation of new works of expression. This conventional account presupposes that fair use matters—that is, fair use provides greater leeway to a defendant than the test of infringement. Despite its commonsense appeal, this assumption has not been empirically tested. Except for fair uses involving exact copies (for which infringement would otherwise exist), it has not been proven that fair use makes much, if any, difference in results. Indeed, in one sector, the music industry, defendants have avoided pursuing fair use as a defense in nearly all infringement cases (except parodies) decided under the 1976 Copyright Act. This fair use avoidance is surprising given that musicians now face a spate of lawsuits due to a predicament we call copyright clutter, which occurs when copyrights protect many sub-elements of many works in a field of creation, thereby making it difficult for people to create a new work in that field without facing exposure to copyright liability. If fair use provides breathing room, why do musicians avoid it? Despite the extensive literature on fair use, legal scholarship has yet to test if fair use really matters. This Article provides the first empirical testing of the significance of fair use as a defense. In an experimental study involving approximately 500 subjects, we found that fair use does make a difference: subjects found no liability more frequently under fair use than the test of infringement. And greater knowledge of music or law resulted in higher findings of no liability under fair use. These findings provide a better theoretical understanding of how fair use operates and practical information for litigants that calls into question the predominant strategy of musicians avoiding fair use as a defense. Such a strategy may result in greater findings of liability where fair use would have otherwise been found