Folsom v. Marsh

A seminal 1841 case in United States copyright law fair use which established the four factors for analysis later set out in the United States Copyright Act of 1976 Title 17 U.S.C. Section 107 - "Limitations on exclusive rights: Fair use."

The case was decided by Justice Story, and was reported by his son William Wetmore Story. It concerned a complaint about a 2 volume biography of George Washington using his papers and letters to aid the narrative which were copied from a much larger 12 volume work.

What the case was about

Justice Story briefly set out the facts in the second paragraph of his judgment. The case concerned two works about President Washington, one derivative of the other. The first was a major 12 volume work: volume 1 was a biography of George Washington by a Mr Sparks (from which no copying was alleged) and the other 11 volumes consisted of writings and letters etc. with explanatory notes and some illustrations. There were nearly 7000 pages in total in all the 12 volumes.

The defendants wrote a 2 volume biography of Washington, which consisted of 866 duodecimal pages written by Rev. Charles Upham telling George Washington's story using letters and papers extracted from the last 11 volumes of the work by Mr Sparks. Previous finding of fact was that about 353 of its 866 pages were copied verbatim from the 12 volume work.