Protecting Fair Use with Fogerty: Toward a New Dual Standard

Copyright law exists to promote the progress of art and science. It achieves this by balancing limited grants of rights to authors against public access to works. However, copyright holders have upset this balance and tilted the law in their favor One cause of this phenomenon is that the benefit of public access to works is diffused throughout the entire public while the benefit of rights in works is concentrated in the copyright holder. This problem is especially prevalent in the context of litigation where copyright holders (plaintiffs) often stand to gain more through victory than copyright users (defendants). As a result of imbalanced litigation incentives, the fair use doctrine, a doctrine meant to preserve the balance of copyright law that relies on litigation for its development and efficacy, is often rendered nugatory despite the merits of the defendant’s case. This Note contends that the current implementation of the Copyright Act’s version of attorney fee shifting does not solve this problem and, in many cases, actually compounds it. This Note also argues for a new interpretation of the Supreme Court’s mandate of “evenhanded” treatment of copyright plaintiffs’ and defendants’ fee petitions. Rebalancing litigation incentives would restore fair use and refocus copyright law on the promotion of progress.