Fair Use, Ford, and Joker Fish

“Good Lord!” said the civil servant, looking in astonishment at the white-faced, weirdly garbed figure who had just strolled into his office. “Where?” said the Joker, ever the rogue, whirling around to look before conceding, “Oh, hahaha, I see. It was just an expression!”

He then got down to business. He had entered the office of Mr. Francis, the civil servant, to request “the tedious copyright forms” necessary to launch his new business: Joker fish. It was he, you see, the Clown Prince of Crime, who had poisoned Gotham City’s harbor, giving the fish his grinning, grotesque visage. 

Due to that face’s recognizability and uniqueness, the Joker now wanted “a cut of every fish sale in America.”

Batman fans will recognize this plot, which featured in Detective Comics #475 and 476, published in 1978. It was also adapted for a 1993 episode of Batman: The Animated Series. (See the copyright office scene in print here and on TV here.) No one, of course, can copyright fish. “They’re a natural resource,” as Mr. Francis points out. Still, you have to give the Joker credit for originality. As a, um, creator, he sought protection for his, ah, work—protection that must be balanced against society’s needs.

That balance was so important to the Founding Fathers of the United States that they wrote it into the Constitution, giving Congress the power—and the responsibility—“To 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.” This is done in several ways. Copyright covers literary output—stories, poems, plays, and the like. Patents ensure the rights of inventors, while trademarks protect business information, such as a word, phrase, or design, that identifies a company’s goods or services.

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Congress has indeed passed many laws to protect these rights. Today, October 19, 2026, is the fiftieth anniversary of one of the most significant: the Copyright Law of 1976.

It was not the country’s first copyright law. There had been one since May 31, 1790. That law, based on England’s 1710 Statute of Anne, protected “any map, chart, book or books already printed within these United States” for a period of fourteen years, with a renewal period of another fourteen years. Foreign works were not protected, as were works that had not been printed and registered. (There was no Library of Congress, so registration took place in the US district court where the author lived.)

Almost immediately, the law began to be amended. In 1802, protection was extended to “historical and other prints.” Musical compositions were added in 1831, and the first term of protection was extended from fourteen to twenty-eight years. Other amendments followed, creating a patchwork quilt of add-ons and carve-outs that grew increasingly unwieldy.

Then, in the 1950s, a movement began to rewrite copyright law from the ground up. This was prompted by several factors. One was the invention of new communication technology—radio, motion pictures, television—which existing law did not cover. Another was the Berne Convention for the Protection of Literary and Artistic Works, which the United States wanted to join but couldn’t until it made major revisions to its copyright structure. It finally joined on March 1, 1989. (In the meantime, the US was part of the Universal Copyright Convention, a sort of watered-down Berne Convention that is now nearly defunct.) Finally, there arose a sense that copyright law, which had always limited ownership in favor of public access, needed to be more generous to authors.

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Throughout the 1950s, Congress studied the copyright issue, and in 1961, it released its Report of the Register of Copyrights on the General Revision of the US Copyright Law. The first drafts of legislation were introduced in 1964, with many revisions taking place until February 19, 1976, when a bill passed the Senate by a vote of 97–0. Seven months later, it passed the House, 316–7, and was adopted as Title 17 of the United States Code on October 19, when President Gerald Ford signed it into law.

The new law went into effect on January 1, 1978, granting five exclusive rights to copyright holders:

1. the right to reproduce a work;

2. the right to distribute copies of the work by sale, lease, or rental;

3. the right to create derivative works;

4. the right to display the work publicly; and

5. the right to perform the work publicly.

Moreover, the law broadened the scope of copyright protection from works that are “published” to works that are “fixed” in a tangible medium. This meant that, for the first time, unpublished material—letters, diaries, rough drafts—was protected, so long as it was actually written or recorded. This provision is crucial in cases like Salinger v. Random House, in which the author of The Catcher in the Rye prevented the publication of a biography of him that quoted liberally from his unpublished letters.

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Another major change was the treatment of fair use. Before 1976, fair use was a common law doctrine, meaning it had been created by centuries of judicial interpretation. The 1976 law codified this doctrine for the first time, laying out four factors to determine whether a particular use of a work is “fair use”:

1. the purpose and character of the use (commercial or educational, transformative or reproductive, political);

2. the nature of the copyrighted work (fictional or factual, the degree of creativity);

3. the amount and substantiality of the portion of the original work used; and

4. the effect of the use upon the market (or potential market) for the original work.

Despite this codification, fair use is still a confounding topic, a fig leaf for all sorts of questionable conduct. For instance, YouTuber Cheere Denise “reviews” books on her channel by reading the entire text and offering commentary. She claims she is avoiding copyright infringement because her commentary is “teaching content.”

What she doesn’t realize is that fair use is a balancing test. No one factor is determinative; rather, each factor must be considered and weighed. For instance, education, which Denise claims she is doing, would satisfy criterion #1. However, she is not reading excerpts but the entire book, which would fail criterion #3. It would also fail criterion #4 because her 190,000+ subscribers are getting to hear entire books for free, damaging the “potential market” for those books.

As we look back on fifty years of the Copyright Act of 1976, we can see that, though not perfect, the law is a vast improvement over any of its predecessors. Yet the law must still evolve to keep up with changing circumstances. AI companies, for instance, use copyrighted works to train their large language models. Is this fair use? One court said yes; another said no. Several others are not yet decided.

There are also name, image, and likeness (NIL) rights, which are related to intellectual property rights. NIL rights give public figures control over the use of their name, appearance, voice, signature, and other characteristics. It means that no one can, say, put a picture of Brad Pitt on their restaurant menu without his permission.

Or sell fish featuring the Joker’s playful punim?

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