Fair use and the law of trespass

A convoluted copyright infringement case that was decided earlier this month – Latimer v. Roaring Toyz, Inc. – once again raises the question of what is fair use.  There is a nice summary of the case here, and the decision is here.

The facts are quite complicated, involving custom painted motorcycles and the issue of whether a photograph of the motorcycle is a derivative work that implicates the designer’s copyright.  But the point that caught my attention was that the district court, in granting summary judgment, raised on its own initiative (the legal term is sua sponte) a fair use argument on the defendants’ behalf.  The 11^th Circuit Court of Appeals subsequently held that this was a legal error; that fair use is an “affirmative defense” that must be raised by the defendant and cannot be invoked by the court if it is not.

First, I want to note with approval the statement by the 11^th Circuit that “Courts have historically viewed summary judgment as inappropriate in the copyright infringement context because of the inherently subjective nature of the inquiry.”  I made this argument several weeks ago in suggesting that summary judgment on the fair use issue was inappropriate in the copyright infringement case brought against Georgia State University, and it is nice to see my opinion supported by the Court of Appeal for the same circuit in which the GSU case is being heard.

I am not so happy, however, with the conclusion that fair use, as an affirmative defense, cannot be raise sua sponte by a court.  In general I do not have a problem with the principle of civil procedure — called Rule 8 — that says that a defense is waived if it is not asserted by the defendant in their answer or similar initial pleading.  It is interesting, however, to note that fair use is not on the list of affirmative defenses mentioned in Rule 8; if it were there would not have been a controversy.  But that exclusion makes sense, because fair use, although it functions as an affirmative defense, really plays a different role in the copyright statute.

An affirmative defense is one in which the defendant admits the actions complained of, but pleads additional facts that excuse those actions.  Many potential defenses, of very different characters, thus function affirmatively.  Rather than compare fair use to an obvious affirmative defense like a statute of limitations, I want to suggest an analogy from the law of real property.

Suppose my neighbor and I disagree over the extent of my property.  When I build my garage on the disputed strip of land, my neighbor may well sue me for trespass. My defense – that I did build the garage as alleged but that it is not my neighbor’s property and therefore no trespass – will look a lot like an affirmative defense.  But in reality the assertion is that there was no trespass because of the boundary on my neighbor’s property and, therefore, on his rights.  Fair use, I suggest, is really a limitation on the rights held by a copyright holder; a boundary line on his or her property, if you will.

This, of course, is the plain reading of the fair use provision in the copyright statute – a fair use is “not an infringement.”  The defendant-appellees in the Latimar case made this point, arguing that the clear language of the law shows that fair use is, essentially, a boundary to a copyright that courts are required to recognize even if it is not asserted by the defendant.  Unfortunately, the 11^th Circuit conflated this argument with another one made by the defendant and then refuted the second argument without ever addressing this first, much more compelling, point.

I have argued before that real property law, much beloved by copyright maximalists for its draconian language about theft and piracy, actually can be a fruitful analogy for discussions of intellectual property law if and when the extensive limitations and exceptions on real property claims are recognized.  The analogy between fair use and the boundaries that limit real property claims is one such point, and it suggests that courts can, and probably should, consider fair use and raise it on their own when it is appropriate but not asserted by a defendant.