Law Life: George Washington and the American birth of fair use

 David A. Kluft, The Daily Record Newswire

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 application of the copyright doctrine of fair use. That case was decided in 1841 by U.S. Supreme Court Justice Joseph Story, sitting as Circuit Court judge for the District of Massachusetts when Boston’s U.S. courthouse sat in Bowdoin Square, at what is now the corner of Cambridge and New Chardon streets.

Jared Sparks, Charles Upham and the Washington letters

When Washington died in 1799, he left the rights to his voluminous correspondence to his nephew, Supreme Court Justice Bushrod Washington, and those subsequently passed to Harvard University historian Jared Sparks.

From 1834 to 1838, Sparks published “The Writings of President Washington,” a 12-volume work of nearly 7,000 pages, including hundreds of Washington’s previously unpublished private letters.

The series was printed in Cambridge by Harvard’s former librarian and official printer, Charles Folsom, who later served as the librarian for the Boston Athenaeum.

Sparks and Folsom were already familiar with the Rev. Charles Wentworth Upham. Born in Canada, Upham graduated from Harvard in 1802 and later settled down with Ann Susan Holmes, the daughter of a Cambridge minister. Sparks had served as editor, and Folsom as printer, for Upham’s 1835 “Life of Sir Henry Vane, Fourth Governor of Massachusetts.”

In 1840, publisher Bela Marsh of Cornhill (where City Hall Plaza now stands) announced the release of Rev. Upham’s new biography, “Life of Washington.” Sparks and Folsom were less than thrilled. 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’ work.

Folsom brought suit against Marsh and Upham for “piracy of the copyright” in Washington’s private letters.

American birth of fair use

The lower court ruled in favor of the plaintiffs, and Justice Story affirmed.

However, in doing so, Story received into American jurisprudence the English common law doctrine of “fair abridgement,” pursuant to which 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.

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.”

More than 150 years later, in Campbell v. Acuff-Rose Music, U.S. Supreme Court Justice David H. Souter credited Story with the formulation of what became the fair use defense codified at 17 U.S.C. §107.

Postscripts

In 1841, the same year Folsom v. Marsh was decided, Charles Upham celebrated the birth of his baby nephew, Oliver Wendell Holmes Jr. Upham soon turned to electoral politics, serving as mayor of Salem, president of the Massachusetts Senate and member of the U.S. House of Representatives.

Sen. Charles Sumner once referred to Upham as “that smooth, smiling, oily man of God,” in part due to the politically motivated firing of a 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 limitations on Sparks’ 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 Sparks became president of Harvard, a New York Evening Post investigative story claimed he “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 how “fair abridgement” was received and evolved into “fair use.”

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David A. Kluft, a partner in the litigation department at Foley Hoag in Boston, is a member of the business and commercial disputes group, and the trademark, copyright and unfair competition group.

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