Charles Wentworth Upham

The Reverend Charles Wentworth Upham, a writer and anthologist, was central to the significant 1841 US copyright case, Folsom v. Marsh. Upham had compiled a two-volume work that included substantial portions from a 12-volume biography of George Washington, which had been published by Charles Folsom. Folsom sued Upham's publisher, Bela Marsh, alleging copyright infringement.

Upham's defense argued that the biographical material was not copyrightable as it concerned a deceased author and the work of a president, or that its use was fair due to the creation of a new work. While the court, under Judge Joseph Story, affirmed that copyrightable material could be infringed even in abridged form, it ultimately rejected Upham's specific defense as not constituting fair use. This case, however, became foundational in establishing the 'fair use' doctrine in American copyright law, outlining four key factors for consideration that remain influential today.

Charles Wentworth Upham, identified as a writer and anthologist, created a two-volume publication that incorporated 353 pages from a 12-volume biography of George Washington. This biography was originally published by Charles Folsom. Folsom subsequently initiated legal action against Upham's publisher, Bela Marsh, accusing them of copyright piracy. The defense presented several arguments, including the assertion that the letters of a deceased author were not subject to copyright, that works by the President belonged to the United States, and that Upham's use of the material constituted fair use because it resulted in a new and distinct work.

In the ruling of Folsom v. Marsh, Judge Joseph Story addressed the nature of copyright and fair use. He determined that the letters were indeed copyrightable and that even partial copying could constitute infringement if it diminished the value of the original work or substantially appropriated the original author's labor. While the court rejected Upham's specific claim of fair use, it established a framework for evaluating such claims. This framework, based on factors like the purpose of the selection, the quantity and value of the material used, and the potential prejudice to the original work's market, laid the groundwork for the modern fair use doctrine, which was later codified in the Copyright Act of 1976.

“Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent.”

“It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto.”

“In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”