Folsom v. Marsh, Massachusetts (1841)

Source: The University of Texas Tarlton Law Library KF 117 1st S76 1842: Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).

Folsom v. Marsh, Massachusetts (1841), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer,

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Record-ID: us_1841

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Full title:
Folsom v. Marsh (C.C.D.Mass. 1841) (No. 4,901)

Full title original language:

A case decided by Justice Joseph Story that expanded the scope of copyright protection and laid the foundations to the later fair use doctrine. The case involved a controversy over the use in a George Washington biography of excerpts from his letters that were previously published in a collection of Washington's papers. The commentary describes the ways in which the dispute created a clash between the popular republican ideology of the antebellum period, one that celebrated the broad and uninhibited access to knowledge by an informed citizenry, and a rising trend of understanding copyright in commercial market terms. The identity of the texts at issue sharpened this tension and produced competing images of Washington's papers as a national-public resource or commercial-private property. The commentary argues that Justice Story's decision of the case reinterpreted traditional copyright doctrines that had previously shielded most secondary uses of copyrighted works, subjected such uses to more stringent limitations, and laid the doctrinal and intellectual foundations for additional future developments in this vein.

1 Commentary:

  • Tehranian, John. 'Et Tu, Fair Use? The Triumph of Natural-Law Copyright.' 38 U.C. Davis Law Review 465 (2005).

  • Reese, Anthony R. 'The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses.' In Intellectual Property Stories, eds. Jane C. Ginsburg and Rochelle Cooper Dreyfuss. New York: Foundation Press, 2006, 259.

  • Culver, Michael. 'An Examination of the July 8, 1838 Letter from Harriet Martineau to United States Supreme Court Joseph Story As It Pertains to United States Copyright Law.' 32 J. Copyright Soc'y 38 (1984).

Related documents in this database:
1841: Master in Chancery Report

Author: N/A

Publisher: N/A

Year: 1841

Location: Massachusetts

Language: English

Source: The University of Texas Tarlton Law Library KF 117 1st S76 1842: Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).

Persons referred to:
Bathurst, Henry, 2nd Earl
Bickersteth, Henry, 1st Baron Langdale
Capen, Nahum
Chesterfield, Philip Dormer Stanhope, 4th Earl of
Cowper, William
Eldon, John Scott, 1st Earl of
Ellenborough, Edward Law, 1st Baron
Folsom, Charles
Franklin, Benjamin
Godson, Richard
Gray, Thomas
Henley, Robert, 1st Earl of Northington
Hillard, George Stillman
Jay, John
Jefferson, Thomas
Lyon, Gardner P.
Madison, James
Marsh, Bela
Marshall, John
Pepys, Charles Christopher, 1st Earl of Cottenham
Phillips, Willard
Pierrepoint, Lady Mary
Plumer, Sir Thomas
Rantoul, Robert, Jr.
Russell, Lady Rachel, née Wriothesley
Shadwell, Lancelot
Sparks, Jared
Story, Joseph
Thurston, Lyman
Upham, Rev. Charles Wentworth
Walpole, Horace, 4th Earl of Orford
Washington, Bushrod
Washington, George
Webb, Thomas B.
Wellington, Arthur Wellesley, 1st Duke of
Wells, Thomas G.
Yorke, Philip, 1st Earl of Hardwicke

Places referred to:
Boston, Massachusetts

Cases referred to:
Dodsley v. Kinnersley (1761) Amb. 403
Duke of Queensbury v. Shebbeare (1758) 2 Eden 329
Folsom v. Marsh (1841), Cir. Ct. Mass.
Gee v. Pritchard (1818), 2 Swans. 402
Gyles v. Wilcox (1741) 2 Atk. 141
Lewis v Fullarton (1839)
Mawman v. Tegg (1826), 2 Russ. 385
Perceval v. Phipps (1813), 2 Ves. & B. 21, 28
Pope v. Curl (1741) 2 Atk. 342
Roworth v. Wilkes (1807) M. & R. 94
Saunders v. Smith (1838)
Sweet v. Shaw (1839), 17 L.J. Ch. 216
Thompson v. Stanhope (1774) Amb. 737
Tonson v. Walker (1752) NA, c.11 1106/18, 3 Swans 672
Whittingham v. Wooler (1817) 2 Swanst. 428
Wilkins v. Aikin (1810) 17 Ves. Jun. 422

Institutions referred to:
Massachusetts Circuit Court
U.S. Congress

U.S. Copyright Act 1831, 21st Cong., 2d Sess., 4 Stat. 436

authorship, theory of
defences and exemptions
excluded subject matter
fair use
private domain
property theory, authors' property
property theory, publishers' property
public domain

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