The Fair Use Case: Folsom V. Marsh

The Fair Use Doctrine has been a practice used in the United State Supreme Courts dating back to 1841 in the case of Folsom v. Marsh. In this case “the court's definition of what constituted a "justifiable use of the original materials" formed the basis of the "fair use" doctrine” (ARL staff, 2014). The court must decide if the case meets four factors noted in section 107 of the Copyright Act when considering the Fair Use defense, “the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market” (SUL, 2013). This paper is going to review a case where Fair Use was used in the defense of copyright infringement and will also review
Ross Greene and Dr. Stuart Ablon co-authored a book called Treating Explosive Kids, based off of the research and methods developed by Dr. Greene to treat explosive behaviors in children. In 1998, Dr. Greene had previously authored a book on his findings called The Explosive Child. Dr. Greene, Dr. Ablon and Massachusetts General Hospital (MGH) had collaborated and worked together during the entire time of research, publication and incorporation of the treatment plan by the hospital. MGH, Dr. Ablon and Dr. Greene terminated their partnership in 2009. After this situation, Dr. Greene filed a suit that “alleged that MGH had infringed his CPS-related trademarks and that Ablon had infringed his CPS-related copyrights” (SUL, 2015). CPS and CPS marks stand for Collaborative Problem Solving a foundation that was started by Dr. Greene that utilized the treatments from the books. MGH counter sued for ownership of the CPS
In the case against Ablon, a jury found for Dr. Greene and awarded him $19,000. The case was applied and the First Circuit agreed with the district courts findings. However, the judgment findings against Dr. Ablon were overturned. The courts explanations for the MGH verdict were that since Dr. Greene was employed with MGH at the time that his contracts with MGH allowed the hospital access and usage of Dr. Greene’s findings and treatments. The overturn of the lower court’s decision in the case of Dr. Ablon, was based off “ the district court erred in ruling that Treating Explosive Kids could not be both joint and derivative as a matter of law” (Justia, 2015). Since the book was a joint venture that both Dr. Greene and Dr. Ablon were co-owners of the book and shared “equal undivided interest in the whole work” (Davis, 2015) and since Dr. Greene was the author of the first book any items used in the joint collaboration would not be copyright