George Washington is responsible for a lot of “firsts.” For example, he was the first President, the first Commander-in-Chief of the Continental Army and the first guy to have the George Washington bridge named after him. But President Washington was also indirectly responsible for what is widely regarded as the first American application of the copyright doctrine of fair use.
Jared Sparks, Charles Upham and the Washington Letters
When Washington died in 1799, he left his voluminous correspondence to his nephew, Supreme Court Justice Bushrod Washington. The rights to these documents were subsequently acquired by Harvard University historian Jared Sparks. From 1834 to 1838, Sparks published The Writings of President Washington, a twelve-volume work of nearly seven thousand pages, the vast majority of which were Washington’s letters. Many of the letters were private and had not been published before. The series was printed in Cambridge, Massachusetts by Harvard’s former librarian and official printer, Charles Folsom.
In 1840, Boston publisher Bela Marsh announced a new two-volume Life of Washington by the Reverend Charles Wentworth Upham. Upham was another Harvard historian who had graduated about ten years after Sparks and traveled in the same circles. In fact, Sparks had served as editor, and Folsom as printer, for Upham’s 1835 Life of Sir Henry Vane.
However, Sparks and Folsom were less than thrilled about the release of their former colleague’s newest biography. Although Life of Washington contained original scholarship by Upham, it also included hundreds of Washington’s private letters, copied directly and in their entirety from Sparks. Folsom brought suit against Marsh and Upham for “piracy of the copyright” in Washington’s private letters.
The American Birth of Fair Use
The case of Folsom v. Marsh was heard in 1841 by Supreme Court Justice Joseph Story, sitting as Circuit Court judge for the District of Massachusetts. After sweeping aside Marsh’s challenges to the validity of the copyright, Justice Story turned to what he saw as “the real hinge of the whole controversy,” whether the copying was “fair abridgement” under the English common law. Pursuant to this doctrine, an author had the “right to abridge and select” parts of another work if what was taken, qualitatively or quantitatively, was necessary for a justified purpose (in this case historical scholarship) and did not supersede the original. Justice Story held that this fact-specific inquiry depended on “the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale . . . of the original work.” Taking these factors into account, Justice Story reluctantly affirmed the lower court and held that defendants’ copying of so many private letters in their entirety was not “fair and bona fide abridgment,” but copyright piracy.
Despite the outcome, it’s hard not to see in this opinion the seeds of the modern doctrine of fair use. Justice Story even presaged transformative use, noting that fair abridgment was more likely when the defendant creates an “original and new work” from the copied materials. Over 150 years later, in Campbell v. Acuff-Rose Music, Justice Souter credited Justice Story with the formulation of what became the fair use defense codified at 17 U.S.C. § 107.
Some Ironic Postscripts
In 1841, the same year Folsom v. Marsh was decided, Charles Upham celebrated the birth of his baby nephew. That baby, Oliver Wendell Holmes, Jr., would eventually eclipse Justice Story as the most famous jurist in the history of the Commonwealth. As for Upham himself, he turned to electoral politics, serving as Mayor of Salem, President of the Massachusetts Senate and member of the United States House of Representatives. Senator Charles Sumner once referred to Upham as “that smooth, smiling, oily man of God,” in part due to the politically-motivated firing of an obscure customs officer named Nathaniel Hawthorne.
Bela Marsh became known as the publisher of abolitionist Lysander Spooner. Although Marsh’s attorney argued vigorously before Justice Story for reasonable limitations on an author’s copyright, in 1855 Marsh published Spooner’s Law of Intellectual Property, which strongly recommended perpetual and unlimited copyrights and patents.
In 1851, two years after Jared Sparks became President of Harvard, a New York Evening Post investigative story charged Sparks with having “materially altered, suppressed and, in some instances, added to the original text” of Washington’s letters. Later that year, British historian Lord Mahon made similar allegations, sparking an intercontinental snail-mail flame war. It is worth considering that, if at least some of the letters had been acknowledged or revealed as fictional when published, and therefore not of value to historical scholarship, Justice Story may never have reached the issue of “fair abridgement,” thus robbing President Washington of at least one of his “firsts,” and perhaps materially altering the historical development of the fair use doctrine.