The Fair Use Blueprint

Every act of creation relies on theft. Justice Joseph Story acknowledged this plain truth in 1841, noting that all works of literature, science, and art must necessarily borrow from what has come before. The question has never been whether writers and artists borrow, but how and when they are allowed to.

That modern boundary was drawn in the courtroom during Folsom v. Marsh. The case centered on a biography of George Washington that incorporated letters previously published in a massive collection of Washington's papers. When the original publishers sued, Justice Story ruled against the biographer, determining that the unauthorized use of the letters infringed on their copyright.

In doing so, Story shifted the baseline of American law. Before Folsom, copyright primarily protected against crude, wholesale, verbatim copying. Story expanded the legal aperture, establishing that any secondary use is potentially infringing unless proven fair.

Yet Story also provided the escape hatch that prevented copyright from locking up culture entirely. He reasoned that deciding what is fair requires looking far beyond the mere quantity of material copied to weigh its quality and value.

Though some legal historians argue the case was originally more about defining the strict boundaries of infringement than carving out a protective harbor for borrowers, Folsom v. Marsh became the DNA of the modern fair use defense. Born in the 19th century as a common law doctrine to keep copyright from stifling creativity, and later codified in the 1976 Copyright Act, it remains the invisible framework governing how culture talks to itself, deciding just how much of the past a creator is allowed to carry into the future.