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Fair Use: Quick Guide

Effective legal research takes into consideration the amount of time and money you expend, as well as your access to research resources. While CORE II students certainly may lack time and cannot pay for their CORE research, they do have educational use of many resources that can help them research more efficiently.

Statutes

Anyone with internet access may access the text of 17 U.S.C. 107, which states the “fair use” limitations on exclusive rights (text and history). Law students may also access the United States Code Annotated (U.S.C.A.) via Westlaw and the United States Code Service (U.S.C.S.) via Lexis. U.S.C.A. features history, “Notes of Decisions” (pointing to related court opinions), and “Content and Analysis” (secondary sources/writings about the law). Similarly, U.S.C.S. links to history, Case Notes (related cases), and Lexis’s relevant secondary sources. Due to these value-added features (annotations), U.S.C.A. and U.S.C.S. are often called “annotated” federal codes. If you are lucky enough to get an assignment with a citation to a statute, using an annotated code is a great starting point. Of course, you will want to check for other related statutes, if applicable, as well.

Cases

If you are lucky enough to be given an assignment with a citation to a case, that case is another important starting point.

For a “quick and inexpensive” overview of case law, you can search Google Scholar (legal documents). You can limit the search to specific courts, if you wish.

Using a Computer-Assisted Legal Research (CALR) system, such as Lexis or Westlaw, to search for cases will provide value-added features such as case summaries or syllabi, Lexis headnotes or Westlaw “topic and key number” headnotes, and citators — KeyCite on Westlaw or Shepard’s on Lexis. Two additional CALR systems — Bloomberg Law and CCH Intelliconnect offer targeted resources on copyright and other intellectual-property issues. Bloomberg Law offers the Intellectual Property Research Center, featuring the United States Patent Quarterly, which contains “every significant IP case since 1929″ (with accompanying BNA >headnotes); the BNA Patent Trademark and Copyright Journal; and the Copyright Law Handbook. A competitor to those Bloomberg/BNA resources, the CCH Copyright Law Reporter “covers the full scope of copyright issues, while eliminating the need to “weed through” irrelevant material.”

Another option is to consult legal treatises. Nimmer on Copyright, available in print or via Lexis, is a well-established treatise on copyright law that sometimes is cited by judges in their court opinions. William F. Patry, Senior Copyright Counsel at Google and a former copyright counsel to the U.S. House of Representatives, is the author of Patry on Copyright. The Nimmer treatise is so massive that Lexis (also) offers a separate index file. While the Patry copyright treatise is a “mere” seven print volumes, Patry’s aforementioned credentials are impressive. The savvy legal researcher will note that there is another treatise on Westlaw that may be an even better starting point — Patry on Fair Use. (Personally, I found scanning the table of contents a bit easier on classic Westlaw. It may be worthwhile for you to scan through the complete Fair Use table of contents.)

Advantages of using legal treatises include: well-credentialed authors; frequent (or, at least regular/annual) updating; background and context for known legal issues; and citations to primary law (e.g. cases, and possibly related statutes) from various jurisdictions. Drawbacks to legal treatises include limited (or expensive) availability of such resources in the “real world” (outside academia) and content that may be complex for novice legal researchers.

Using law journal articles can be a bit hit-or-miss. In USCA or USCS annotations, the well-indexed (and blurb-summarized) court opinion citations can be relatively accessible, but the list of journal articles for a topic such as “fair use” can seem daunting (albeit it still easy to scan.) Law journal articles are “fixed in time,” so that any references to primary sources (statutes and court opinions) must be updated. Given the enormous amount of legal journal scholarship available, you should focus on the most important or relevant articles, such as a very recent article on art and fair use, if available. Or, for background research, a “Note” or “Comment” that may explain a very pertinent case more in-depth than the case summary or syllabus on Lexis or Westlaw.

Advantages of using legal journals include: coverage of “cutting-edge” legal topics; in-depth summaries of pertinent/recent cases; and possible mention of novel legal arguments or search terms. Disadvantages of using legal journals include: the massive quantity of such publications; varying quality of authors’ credentials (especially compared to treatises); and the fact that the analysis and citations to primary sources are “frozen in time” at publication.

There are a myriad of ways (indexes, the ATLEAST search, HeinOnline, etc.) to find law journal articles on a specific topic. Please contact your CORE librarian or a reference librarian for additional assistance.

Other (Secondary) Sources

The “laundry list” of possible secondary sources mentioned during CORE I should not be dismissed out of hand. For example, even an “older” or partially-superseded A.L.R. annotation (article) will provide updated cases from various jurisdictions on a topic, even if the text and analysis of the annotation is a bit dated. (Be wary, though, of annotations that are made “stale” when the law on a subject has fundamentally shifted from under them.) Any source that helps you find the most relevant cases in the jurisdictions you care about the most (at least until this specific CORE II assignment is over) can be a useful starting point.

Citators

While any online tutorial that improves your legal research skills likely is worth the time and effort spent, finding online tutorials for KeyCite and Shepard’s (whether from the vendors, or from law librarians or other contributors sharing videos through YouTube) would benefit nearly every first year law student. The functionality of “Limit KeyCite results” and “Focus/Restrict by” tools on classic Westlaw and Lexis, respectively, can save time (now and later) and money (later). Bloomberg Law has staff dedicated to preparing its citator, BCITE, which is included in the flat fee Bloomberg charges its customers for Bloomberg Law in the real world. (No charge for current law students.)

Other, Scholarly Books

Presuming you have found the most relevant primary law sources, careful and selective use of additional resources, such as scholarly books, may provide additional support your legal argument(s). While the titles listed below seem potentially helpful at first, scanning the associated bibliographic information can give additional clues as to how useful a source may be. Hollywood’s Copyright Wars… has a current publication date, but its subject heading indicates that it is primarily an historical overview. Cutting Across Media… seems right on point, but from a more theoretical than practical approach. (Though citing to an interview with Public Enemy in your brief might be a bold move.) Reclaiming Fair Use… has some interesting chapters, though the title indicates the authors’ views on fair use.

Law Class Reserve books are available for two-hour checkout at the Circulation Desk. Please have the call number with you when requesting a book. (Overdue fines are $1 per hour.)

  • Patricia Aufderheide and Peter Jaszi. Reclaiming Fair Use: How to Put Balance Back in Copyright (2011).  Print: Law Class Reserve KF3020.A984 2011
  • Peter Decherney. Hollywood’s Copyright Wars: From Edision to the Internet (2012). Print: Law Class Reserve KF3070.D43 2012
  • Zohar Efroni. Access-Right; The Future of Digital Copyright Law (2011).  (e-book) Print: Law Class Reserve K1420.5.E38 2011
  • Kembrew McLeod and Rudolf Kuenzli, eds. Cutting across Media: Appropriation Art, Interventionist Collage, and Copyright Law. (2011).  Print: Law Class Reserve K1420.6.C888 2011