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53 IDEA 323 (2013)
The Case of the Missing Case: Stewart v. Abend and Fair Use

handle is hein.journals/idea53 and id is 341 raw text is: 323 THE CASE OF THE MISSING CASE: STEWART V. ABEND AND FAIR USE STEPHEN MCJOHN* ABSTRACT Three Supreme Court cases dominate fair use: Sony Corp. of America v. Uni- versal Studios, Inc., Harper & Row, Publishers, Inc. v. Nation Enterprises, and Campbell v. Acuff-Rose Music, Inc. One case has gone mysteriously missing. In Stewart v. Abend, the Supreme Court held that it was not fair use for the pro- ducers of Alfred Hitchcock's film Rear Window to continue showing the film. Their rights had been terminated in the underlying story, It Had to Be Murder, by an unanticipated shift in copyright case law. Stewart remains well known in copyright law for its lengthy discussion of a complex issue of copyright renew- al, but Stewart's short, sharp fair use discussion has gone by the wayside. At best, Stewart makes a cameo in judicial opinions and casebooks. Sony, Harper & Row, and Campbell appear together every time, like the Three Musketeers. Stewart's fair use analysis is brief but offers valuable precedent on the applica- tion of fair use to transactions, the definition of relevant markets, and the very meaning of fair. TABLE OF CONTENTS I. INTRODUCTION ................................................................................... 324 II. THE FAIR USE STORY ........................................................................ 326 A. The Statute ................................................................................... 326 B. The Cases ..................................................................................... 329 1. Sony Corp. of America v. Universal City Studios, Inc. ........ 329 2. Harper & Row, Publishers, Inc. v. Nation Enterprises ........ 331 Professor of Law, Suffolk University School of Law. The idea for this piece springs from a brief story by Lorie Graham & Stephen McJohn, Thirty-Two Short Stories About Intellectual Property, 3 HASTINGS Scl. & TECH. L.J. 1 (2011). Volume 53 - Number 3