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Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for any use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the ...
If Defendant uses the mark as a trademark (i.e., a brand, product name, company name, etc.) or if Defendant uses the term in a suggestive manner, it is not descriptive fair use. Nominative fair use of a mark may also occur within the context of comparative advertising. [2] Under U.S. Supreme Court precedent, the fair use defense in trademark ...
The nominative use doctrine was first enunciated in 1992 by the U.S. Court of Appeals for the Ninth Circuit in New Kids on the Block v. News America Publishing, Inc. [4] In New Kids on the Block, the court had examined a "New Kids on the Block survey" performed by the defendant, and found that there was no way to ask people their opinion of the band without using its name.
The standard defense in such cases is for companies accused of violating copyright to argue that the way they are using copyrighted works should constitute “fair use”—that copyright was not ...
WHOSE FAIR USE? The intricacies of music may matter less in the end if, as many expect, the AI cases boil down to a "fair use" defense against infringement claims - another area of U.S. copyright ...
Thus, the Circuit Court rejected Napster's argument that file sharing by its users qualified for the fair use defense. Napster's claims that it enabled legal sampling, space shifting, and permissive distribution (some artists had consented to the presence of their songs on the Napster service) were also rejected by the court.
Additionally, the fair use defense to copyright infringement was codified for the first time in section 107 of the 1976 Act. Fair use was not a novel proposition in 1976, however, as federal courts had been using a common law form of the doctrine since the 1840s (an English version of fair use appeared much earlier). The Act codified this ...
Camara also tried to raise a fair use defense at the last minute, but it was disallowed on procedural grounds. Fair use is an affirmative defense which would have to have been raised prior to the first trial, or at least reasonably early enough to allow for discovery in the retrial, whereas the retrial date was only days away. [16]