Folsom v. Marsh

Abstract

In an early published opinion concerning copyright infringement, Justice Story considered whether the Reverend Charles W. Upham violated copyright laws by using copies of President Washington's letters in his book, "The Life of Washington." Reverend Upham had taken the letters verbatim from an already-published book, "The Writings of President Washington." Justice Story acknowledged that, in certain instances, authors could use passages of a previous work for purposes of "fair and reasonable criticism," such as in a book review, but if the use went beyond fair and reasonable review, "with a view not to criticize but to supercede the use of the original work," then that would constitute an act of copyright piracy. Folsom v. Marsh, 9 F. Cas. 342, 344-345 (Cir. Ct. Mass. 1841). Justice Story established a multifactor test to determine whether the subsequent use was a "fair use," which did not constitute a violation of copyright laws. Justice Story stated that courts should "look to 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 or diminish the profits or supersede the objects of the original work." Marsh, 9 F. Cas. at 348. Ultimately, Justice Story found that Reverend Upham had engaged in copyright piracy, although Justice Story entertained "no doubt" that Reverend Upham considered his use of Washington's letters "a perfectly lawful and justifiable use." 9 F. Cas. at 348.

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