Meg Franklin, Associate Member, University of Cincinnati Law Review
The Balance Between Monopoly and Public Domain
Fair use is often seen as a statutory check to the monopoly power copyright holders receive from the Copyright Office. By excluding certain activities from copyright infringement, the fair use doctrine balances the tension between the copyright holder’s rights and the public’s interest in a rich public domain. In the midst of this tension, fair use “makes sure that the rights of the public expand at the same time, so add-on creativity and innovation can continue to thrive.” Academics and judges oft ponder the right balance between copyrights and fair use. Yet, instead of mere one-dimensional territorial gain—with fair use either expanding or contracting—there might be a different, multi-dimensional approach to the doctrine.
The doctrine of fair use is traditionally applied as an affirmative defense. Yet, the Ninth Circuit took a nontraditional approach to fair use in Lenz v. Universal Music Corp. where Similarly, the Second Circuit in Keeling v. Hars was confronted with fair use in an unusual context. In both cases, the courts balanced the purposes of copyright law with the fair use doctrine. Yet, each case also showcased new contexts that may allow copyrights to adapt to technological or cultural changes in the arts and media.
The Fair Use Doctrine: History and Purpose
Copyright law in the United States exists “not to reward the author, but is rather to secure ‘the general benefits derived by the public from the labors of authors.’” These grants of limited monopolies, or copyrights, provide an incentive for authors to create works benefiting the general public. Under 17 U.S.C. § 102, “copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression.” The copyright holder of an “original work” holds “exclusive rights” to reproduce or distribute that work for a limited duration of time. Unlawful uses of the copyrighted work constitute infringement.
However, copyright law has long permitted lawful “fair use.” Originally a judge-made exception, fair use was later codified in § 107 of the Copyright Act of 1976. The fair use statute carves out an exception to the use of copyright work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Fair use is a doctrine of equity, allowing courts to balance the interests of the copyright holder with the interest of promoting a rich public domain. As explained the Court, “[t]he fair use doctrine thus permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”
The Traditional Understanding: Fair Use as an Affirmative Defense
In the courts and halls of academia, a discussion regarding which party bears the burden of proving fair use continues to develop. Traditionally, courts have treated fair use as an affirmative defense. In a typical scenario, a plaintiff would bring a claim of copyright infringement against a defendant. Then in turn, the defendant would argue that his or her use was fair and lawful. This categorical distinction between treating fair use as an affirmative or negative defense can have a significant impact on the outcome of a case. When treated as an affirmative defense, a failure to raise fair use acts as a waiver of the defense. Also, as an affirmative defense, the defendant has the burden to prove that his or her use was fair. Thus, due to the importance of the fair use doctrine in copyright law, there are some scholars that believe that fair use should not be treated as an affirmative defense. Treating fair use as a negative defense tends to favor a broader application of the doctrine.
The Ninth Circuit Defines Fair Use as a Right under the DMCA
The Ninth Circuit in Lenz v. Universal Music Corp. expanded the reach of the doctrine by requiring plaintiffs to consider the defendant’s fair use. However, the holding was limited to 17 U.S.C. § 512(f) of the Digital Millennium Copyright Act (DMCA). In Lenz, a recording studio brought suit under the DMCA for copyright infringement of a song that played in the background of a posted YouTube video. On behalf of the recording studio, YouTube issued a takedown notice to the video owner in accordance with procedure under the DMCA. The first issue in the case was whether, “17 U.S.C. § 512(c)(3)(A)(v) requires copyright holders to consider whether the potentially infringing material is a fair use of a copyright under 17 U.S.C. § 107 before issuing a takedown notification.” To answer this question, the court reviewed the legislative history of the DMCA and concluded “that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).” In its reasoning, the court agreed with dicta from the Eleventh Circuit: “[a]lthough the traditional approach is to view “fair use” as an affirmative defense, this writer, speaking only for himself, is of the opinion that it is better viewed as a right granted by the Copyright Act of 1976.” The use of this language indicates that the court’s holding should extend beyond the narrow confines of takedown notices in DMCA.
The Second Circuit Allows the Plaintiff to Weaponize Fair Use
Similarly, the Second Circuit allowed a unique application of the fair use doctrine in Keeling v. Hars. Unlike typical copyright infringement cases, the plaintiff asserted a copyright she claimed had been acquired through fair use. Allowing the plaintiff to use fair against the defendant, shaped fair use to balance the tension between the public domain and the creation of copyright monopolies. This ruling shows that fair use is a versatile doctrine that takes different forms beyond mere expansion or contraction.
Point Break Live!
Point Break Live! (PBL), written by Plaintiff Jamie Keeling, is the “parody stage adaptation of the 1991 Hollywood action movie Point Break, starring Keanu Reeves and Patrick Swayze.” The action movie follows Keanu Reeves’s character, an FBI agent, who goes undercover in an attempt to catch a gang of surfers and alleged bank robbers. In her stage adaptation, Keeling adds “jokes, props, exaggerated staging, and humorous theatrical devices” to the raw elements of the movie to “transform the dramatic plot and dialogue of the film into an irreverent, interactive theatrical experience.” For instance, a central facet of PBL is that an audience member is chosen to play the Keanu Reeves character which is meant to indiciate“Reeves’s reputedly stilted performance in the movie.” In addition, the audience watches PBL through the viewpoint of a film production crew as they make the film.
New Rock Theater Productions, LLC
Defendant Eve Hars owns New Rock Theater Productions, LLC (New Rock) production company. In 2007, Keeling entered into a production agreement with Hars to allow New Rock to stage a two-month run of Point Blank Live!. However, during the two-month run, Hars discovered that Keeling did not own a copyright or license for the Hollywood screenplay of Point Break. Moreover, Hars came to believe that Keeling did not lawfully own any rights to the PBL parody play and sought to renegotiate the contract and end the payments to Keeling. In response, Keeling refused to renegotiate, threatened suit, and registered a copyright in PBL. Believing that Keeling had no lawful copyright, Hars continued to stage performances of PBL for four years without payment to – or authorization from – Keeling. Then, in December 2010, Keeling brought suit against Hars, New Rock, and a New Rock investor asserting copyright infringement, among other claims.
The Southern District of New York Proceeding
The District Court of the Southern District of New York denied Hars’s motion to dismiss that asserted Keeling’s unauthorized derivative work was not entitled to copyright protection as a matter of law. , Ultimately, the Court ruled that Keeling’s work could be categorized as “a parody that makes ‘fair use’ of another copyrighted work [which] contain[s] sufficient originality to merit copyright protection itself.” The jury returned a verdict in favor of Keeling, finding: “(a) that Keeling’s use of material from the film Point Break was ‘fair use in the way of a parody,’ (b) that Keeling was the sole owner of the copyright to PBL, and (c) that defendants infringed Keeling’s copyright.”
Fair Use as a Sword as well as a Shield
Hars appealed the District Court’s denial of summary judgment and the unfavorable jury verdict to the Second Circuit Court. Hars argued that even if PBL made fair use of the source material, fair use is only an affirmative defense. The Court reasoned that although the fair use doctrine is typically invoked as an affirmative defense to a copyright infringement suit, the fair use doctrine also affords the author “independent” protection against infringement. In this way, it acts as an offensive “sword” as much as a defensive “shield.” The Court cited 17 U.S.C. § 103, the provision governing derivative works, as support.
The plaintiff’s use of fair use as a “sword” shows the utility of the doctrine. The court could place fair use in an unusual context without disrupting the balance between copyright monopolies and the public domain. The court balanced this tension well because the plaintiff retained the burden of proving fair use. As an affirmative defense, the party asserting fair use—usually the defendant—has the burden of proving fair use. Here, the party asserting fair use in Keeling—the plaintiff—had the burden of proving fair use. Thus, the court’s ruling did not unduly change the dynamics of fair use compared to its usual application as an affirmative defense.
New Horizons or New Filters for the Fair Use Doctrine?
Taken together, Lenz and Keeling show a trend toward expanding the horizons of the fair use doctrine. Yet, considering the carefully circumscribed holdings, these cases are more likely to display new filters to view fair use.
The first conclusion—that the fair use doctrine is expanding its horizons—is a reasonable conclusion. In both cases, fair use was triumphant over the opposing legal argument. Interpreting fair use as a right instead of an affirmative defense in Lenz potentially recalibrated the balance between copyright holders and subsequent creators. By giving more deference to defendants asserting fair use, the court increased the importance of the fair use doctrine. A similar conclusion could be drawn from the Keeling court which allowed the plaintiff to assert an infringement claim based on a fair use theory. Utilizing fair use to support a claim or defend against a claim creates a more significant role for the doctrine. Those who conclude that these cases show a trend of expansion worry that it mirrors a societal trend toward greater tolerance of infringing activities.
Yet, both the Ninth Circuit in Lenz and the Second Circuit in Keeling maintained a healthy level of tension between the rights of copyright holders and the public domain. Therefore, instead of expanding the horizons of fair use, each new application of the fair use doctrine can instead be seen as a new filter in which to view copyright. The Second Circuit maintained a balance in these two goals of fair use because Keeling had the burden to prove fair use of her parody play. Similarly, even though the Ninth Circuit in Lenz changed the scope of fair use by defining it as a right, the court restricted its holding to the DMCA. Taken together, these two decisions indicate the importance of maintaining both flexibility and balance in copyright law. This flexibility is helpful when crafting equitable results among parties. Yet, flexibility may also help courts apply statutes which predate current technological advancements. If fair use maintains its healthy level of tension between the interests of copyright holders and the public domain, copyright law will likely adapt well to new technology and forms of media.
Maintaining a Balance in Copyright Law
The fair use doctrine began as a judicially-created exception to the monopoly afforded to copyright holders. Yet, instead of viewing the doctrine as a method of diminishing the importance of copyright, it should be viewed as an essential element in reaching copyright law’s main purpose. Fair use has an important role in mediating the tension between copyright holders and the public domain. If Keeling and Lenz indicate a trend toward defining new filters in which to view copyright law, then fair use will likely continue to balance the interests of the copyright holder with the interests of a rich public domain. Maintaining this balance will ensure that copyrights continue to incentivize authors to create original works to further society—in whatever society the future brings.
 See sources cited infra notes 12-14.
 Corynne McSherry, Fair Use Is Not An Exception to Copyright, It’s Essential to Copyright, Electronic Frontier Foundation (Jan. 21, 2015) https://www.eff.org/deeplinks/2015/01/fair-use-not-exception-copyright-its-essential-copyright.
 See e.g., John Burke, The Expansion of Fair Use in Response to Copyright’s Growing Protection (2014). Law School Student Scholarship. Paper 631, at 2. http://scholarship.shu.edu/student_scholarship/631.
 815 F.3d 1145, 1153 (9th Cir. 2016).
 809 F.3d 43, 48 (2d Cir. 2015).
 1-1 Nimmer on Copyright § 1.03 (2015). See also, USCS Const. Art. I, § 8, Cl 8 (the United States Constitution states that Congress shall have the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”)
 See, Mazer v. Stein, 347 U.S. 201, 219, 74 S. Ct. 460, 98 L. Ed. 630 (1954) (noting “the economic philosophy behind the [Copyright] Clause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors”).
 17 U.S.C.S. § 102 (LexisNexis, Lexis Advance through PL 114-229, approved 9/30/16).
 For instance, the statute authorizes the copyright holder: “(1) to reproduce the copyrighted work . . . (2) to prepare derivative works based upon the copyrighted work; [and] (3) to distribute copies or phonorecords of the copyrighted work. . ..” 17 U.S.C.S. § 106 (LexisNexis, Lexis Advance through PL 114-229, approved 9/30/16).
 Keeling v. Hars, 809 F.3d 43, 48 (2d Cir. 2015) (explaining that “unauthorized derivative works are typically afforded no copyright protection because they unlawfully infringe the exclusive rights of the original author”).
 4-13 Nimmer on Copyright § 13.05 (“In determining whether given conduct constitutes copyright infringement, the courts have long recognized that certain acts of copying are defensible as ‘fair use’”).
 See e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
 17 U.S.C.S. § 107 (LexisNexis, Lexis Advance through PL 114-229, approved 9/30/16).
 See, Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968) (explaining the “doctrine is entirely equitable and is so flexible as virtually to defy definition”).
 See e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
 Stewart v. Abend, 495 U.S. 207, 236 (1990).
 Suntrust Bank v. Houghton Mifflin Co.,268 F.3d 1257, 1260 n.3 (11th Cir. 2001) (“fair use is commonly referred to as an affirmative defense”). See also, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994); Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010).
 Keeling v. Hars, 809 F.3d 43, 49 (2d Cir. 2015) (explaining that, “[t]ypically, fair use is invoked as a defense against a claim of copyright infringement brought by the source-material rightsholder”).
 “Failure to plead an affirmative defense generally results in a waiver of that defense.” Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010). Also, Fed. R. Civ. P. 8(c) HN27 (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense”).
 “Congress did not intend fair use to be an affirmative defense; a defense, yes, but not an affirmative defense. The negative consequences of labeling fair use an affirmative defense support shifting back to what Congress intended. Fair use should not be seen as an affirmative defense, but should instead be treated as a defense that shapes the scope of a copyright owner’s rights.” SYMPOSIUM: CAMPBELL AT 21: SYMPOSIUM: FAIR USE: AN AFFIRMATIVE DEFENSE?, 90 Wash. L. Rev. 685.
 815 F.3d 1145, 1153 (9th Cir. 2016).
 Lenz v. Universal Music Corp., 815 F.3d 1145, 1153 (9th Cir. 2016) (holding”—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses”).
 “On February 7, 2007, Lenz uploaded to YouTube a 29-second home video of her two young children in the family kitchen dancing to the song Let’s Go Crazy by Prince. Available at https://www.youtube.com/ watch?v=N1Kf JHFWlhQ (last visited September 4, 2015). She titled the video ‘Let’s Go Crazy #1.’ About four seconds into the video, Lenz asks her thirteen month-old son ‘what do you think of the music?’ after which he bobs up and down while holding a push toy.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1149 (9th Cir. 2016).
 17 U.S.C.S. § 512 (LexisNexis, Lexis Advance through PL 114-229, approved 9/30/16).
 Lenz v. Universal Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016).
 Id. at 1153.
 Lenz v. Universal Music Corp., 815 F.3d 1145, 1152-53 (9th Cir. 2016) (quoting Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996) (Birch, J.)).
 809 F.3d 43, 45 (2d Cir. 2015), cert. denied, 136 S. Ct. 2519 (2016).
 Supra, n.12.
 Keeling, 809 F.3d at 45.
 Keeling, 809 F.3d at 45.
 See, Keeling, 809 F.3d at 45.
 See id.
 See Keeling v. New Rock Theater Prods., LLC, No. 10 Civ. 9345(TPG), 2011 WL 1899762, at *1 (S.D.N.Y. May 17, 2011).
 Keeling, 809 F.3d at 45-46.
 Id. at 47.
 The Court cited Second Circuit precedent holding that denial of summary judgment cannot be appealed when the movant subsequently lost after a full trial on the merits. Id. at 47. Yet, the Court reviewed de novo because the purported error was “purely one of law.” Id.
 The Court correctly noted that both parties “seem[ed] to confuse the distinction between derivative works and fair use.” Keeling, 809 F.3d at n.6. The Copyright Act directs that “a derivative work involves a transformation to the work’s ‘form’ . . . while fair use involves a transformation of a work’s ‘purpose and character.” Id. This is an interesting case because PBL is both a derivative work—a transformation of a movie into a theater production—and a work under fair use—transformation of a serious drama into a parody. Id.
 See id. at 49.
 Keeling, 809 F.3d at 49.
 See id.
 See Burke, supra note 3, at 1.