Seventh Circuit Criticizes and Parts Ways With Second Circuit’s Application of the Fair Use Doctrine

October 6, 2014Alerts Entertainment Law Alert

Under the “fair use” doctrine, artists regularly include portions of copyrighted works in books, movies, television programs, music and other works without obtaining licenses from the copyright owners. When one of these uses is challenged, the courts determine whether it was, in fact, “fair” or an unauthorized infringement.

Given the importance of the “fair use” clause to Congress’ twin, sometimes conflicting, goals of not stifling expression and creativity while, at the same time, incentivizing artists to exclusively control the exploitation of works they create, it is no surprise that the “fair use” rules are not black-and-white. Fair use determinations are to be made by applying four broadly worded “factors” set out Section 107 of the Copyright Act. Over time, the boundaries of what is “fair” have expanded, and the decisions applying the fair use factors have not always been consistent. The challenge artists face in predicting whether an unlicensed use of a copyrighted work will be deemed “fair” or infringing will likely increase with the United States Court of Appeals for the Seventh Circuit’s recent ruling in Kienitz v. Sconnie Nation LLC, No. 12-cv-464 (SLC) (Sept. 15, 2014).

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