Copyright law recognizes fair use as a general limitation. It is assumed that fair use provides breathing room above and beyond the determination of infringement to facilitate the creation of new works of expression. This conventional account presupposes that fair use matters—that is, fair use provides greater leeway to a defendant than the test of infringement. Despite its commonsense appeal, this assumption has not been empirically tested. Except for fair uses involving exact copies (for which infringement would otherwise exist), it has not been proven that fair use makes much, if any, difference in results. Indeed, in one sector, the music industry, defendants have avoided pursuing fair use as a defense in most infringement cases (except parodies) decided under the 1976 Copyright Act. This fair use avoidance is surprising given that musicians now face a spate of lawsuits due to a predicament we call copyright clutter, which occurs when copyrights protect numerous subelements of many works in a field of creation, thereby making it difficult for people to create a new work in that field without facing exposure to copyright liability simply based on a similar subelement. If fair use provides breathing room, why do musicians avoid it?
This Article provides the first empirical testing of the significance of fair use as a defense. In an experimental study involving approximately 500 subjects, we found that fair use does make a difference: subjects found no liability more frequently under fair use than the test of infringement when examining the same case. And greater knowledge of music or law resulted in higher findings of no liability under fair use. These findings provide a better conceptual understanding of how fair use operates and practical information for litigants that call into question the predominant strategy of musicians avoiding fair use as a defense. Such a strategy may result in greater findings of liability where fair use would have otherwise been found.

*. Professor of Law and Co-Director, Program in Intellectual Property Law, Illinois Tech Chicago-Kent College of Law. In the interest of full disclosure, I joined an amicus brief submitted to the Ninth Circuit in support of the jury verdict against Pharrell Williams in Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018). See Brief Amicus Curiae of the Institute for Intellectual Property and Social Justice Musician and Composers and Law, Music, and Business Professors in Support of Appellees, Williams, 895 F.3d 1106 (No. 15-56880) 2016 U.S. 9th Cir. Briefs LEXIS 2423. I also joined an amicus brief submitted to the Second Circuit in support of the lower court’s finding of fair use by Drake in Estate of Smith v. Cash Money Records, Inc., 253 F. Supp. 3d 737 (S.D.N.Y. 2017), aff’d sub nom. Estate of Smith v. Graham, 799 F. App’x 36 (2d Cir. 2020). Brief for Amicus Curiae Intellectual Property Professors Supporting Defendants-Appellees, Estate of Smith, 799 F. App’x 36 (No. 19-0028). In both appeals, the courts sided with the result supported by the amicus briefs. See Williams, 895 F.3d at 1120–27; Estate of Smith, 253 F. Supp. 3d at 742–43. We are grateful for the comments we received from colleagues during a presentation of a draft of this Article at the 2019 Intellectual Property Law Scholars Conference. Many thanks to our research assistants Sarah Anderson, Elizabeth Campbell, Elizabeth Jedrasek, Brittany Kaplan, and Annika Morin. This research was funded by a grant from the Chicago-Kent Center for Empirical Studies of IP and was approved for human subjects testing by the Institutional Review Board of Illinois Institute of Technology.

†. Associate Professor, and Director of Education, Business Law & Taxation, Monash University.

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