Determining Fair Use Under the Copyright Act: Judge Versus Jury

When the Supreme Court ruled in 1998 that copyright infringement lawsuits were subject to the Seventh Amendment’s right to jury trial, the natural consequence of that ruling was that fair use would likewise become a jury issue. However, at the time Congress enacted the Copyright Act’s fair use provision, 17 U.S.C. § 107, copyright infringement lawsuits were still considered “equitable actions” and thus the exclusive province of federal judges. Indeed, Congress expressly noted that its adoption of four factors set forth in Section 107 was intended in part to reflect the criteria that courts themselves had developed under the judicial doctrine of fair use. The final result of this Congressional action was a fair use statute that vested the trier of fact with broad discretion over the circumstances under which an author’s exclusive rights must give way to other societal interests. Now that such broad discretion has been given to juries, are there any circumstances in which trial judges may overturn the jury’s fair use determination because the court would have decided the issue differently?

The district court in Nevada was confronted with precisely this issue in Donna Corbello v. Thomas Gaetano DeVito, et al., Case No. 2:08-cv-00876, a copyright infringement case involving the screenplay for the musical Jersey Boys, which is based on the lives and music of the rock and roll vocal group The Four Seasons. In an order handed down this week, the district court judge Robert C. Jones overturned a portion of a jury’s verdict for the plaintiff on the ground that the defendants were “entitled to a judgment of fair use as a matter of law.” At issue was whether those involved in the development of the screenplay for Jersey Boys had infringed the plaintiff’s unpublished manuscript about his life as a member of The Four Seasons. Following a 15-day trial, the jury found in relevant part that (1) the Jersey Boys screenplay infringed the manuscript, (2) the defendants’ use of portions of the manuscript was not fair use, and (3) the plaintiff was entitled to 10 percent of the screenplay’s profits. 

During the trial, the district court had denied the defendants’ motion for a directed verdict on the ground that it “believed the fair use issue was properly a jury question.” However, following the jury’s verdict for the plaintiff, the court apparently had a change of mind and granted the defendants’ renewed motion for judgment as a matter of law. Equally puzzling, the district court offered no explanation for its apparent change of heart and, more troubling, provided no discussion regarding the role of trial courts in reversing fair use determinations reached by the jury.

Although acknowledging that “[f]air use is a mixed question of law and fact,” the district court failed to make clear whether it was reversing the jury’s determination because of an erroneous interpretation of law or disagreement with the jury’s factual findings. As a practical matter, the court was unable to dispute the jury’s reasoning because the factors that led the jury to reject the fair use defense were never revealed by the jury’s general verdict. As a result, the district court simply proceeded to address the fair use issue as though the court, and not the jury, had been tasked with this determination.

The district court identified four principal grounds on which it decided that the defendants’ use of portions of the unpublished manuscript was “fair.” First, the court concluded the evidence showed that the success of the defendants’ Jersey Boys screenplay actually enhanced rather than diminished the value of the unpublished manuscript, and therefore the fourth fair use factor – effect on the potential market for or value of the copyrighted work – favored the defendants. As the district court concluded, “To the extent the [unpublished manuscript] may be profitable today, it is almost certainly only because of the Play,” and “If anything, the Play has increased the value of the [manuscript].”

Second, the district court examined each of the 12 instances of infringement claimed by the plaintiff and concluded that “the amount of protectable, creative material potentially copied in relation to the [manuscript] as a whole is very small, less than 1[percent].” Based on its analysis, the court concluded that “about 145 creative words [were] copied” of the manuscript’s approximately 68,500 words.

Third, the district court concluded that even though the defendants’ conduct was clearly commercial in nature, which disfavored a finding of fair use, that consideration was not determinative because the court found the defendants’ work to be “transformative.” As the court explained it, whereas the primary purpose of the plaintiff’s manuscript was “to inform” the public about the origins of The Four Seasons, the purpose behind the Jersey Boys screenplay “is primarily to entertain.”

Fourth, based on its conclusion that only a very small portion of the plaintiff’s manuscript was ever used by the defendants, the court determined that the amount of damages was excessive. In the court’s view, the jury’s award of 10 percent of the net proceeds from the screenplay was “unsupportable” in light of the fact that the amount taken from the manuscript amounted to only 0.2 percent of the Jersey Boys screenplay.

The district court apparently believed it was proper to reverse the jury’s fair use determination simply because the court’s application of the four fair use factors resulted in a different conclusion than the one reached by the jury. The problem with this approach is that it erroneously assumes that the fair use determination is guided solely by application of the four fair use factors set forth in section 107. However, as a California district court recognized in the jury instructions provided in Oracle v. Google, section 107 states that the fair use determination “includes” consideration of the four factors but does not preclude consideration of other factors. As a result, the jury in that case was told that it “may consider any additional circumstances and evidence, pro or con, that, in your judgment, bear upon the ultimate purpose of the Copyright Act, including protection of authors and the right of fair use, namely, to promote the progress of science and useful arts.”

Did the jury in the Jersey Boys case consider other factors besides the four identified in section 107? We will never know the answer to that question because of the general verdict rendered in that case. But if juries are free to consider other factors, then how can a trial court properly determine whether a defendant’s motion for directed verdict or for judgment as a matter of law is meritorious if the parties and the court are unable to evaluate – or even know about – all the factors the jury may have considered in reaching its fair use determination? In short, given the open-ended nature of section 107’s fair use provision, we can expect more cases where judges and juries reach different fair use results, which in turn will ultimately require federal appellate courts to specify more clearly the respective roles of juries and trial judges in the ultimate fair use determination.