The cherubic little fellow pictured on the right is at the center of a closely-watched case involving the “takedown” provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). His mom, Stephanie Lenz, posted a 30-second YouTube video of the tike “dancing” to Prince’s “Let’s Go Crazy,” which can be heard playing in the background.…

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A recurring theme in our posts under the “Fair Use” tag has been the rise of “transformative use” as a litmus test that not only supplements, but often virtually supplants, the  four statutory fair use factors—the purpose and character of the secondary use, the nature of the original work, the amount of the original used, and the…

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We have been following the ups and downs of The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, since the inception of this blog. After the parties’ grand bargain, which had the potential to create a unique on-line repository of virtually all the world’s…

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In a post here back in April, we reported on the Second Circuit’s ruling in a fascinating fair use case involving the use of copyrighted photographs by appropriation artist Richard Prince, Cariou v. Prince. We observed that in assessing the “purpose and character” of Prince’s use the court had taken an exceptionally broad and subjective approach to…

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Some time ago, in our continuing series of “Cease and Desist Letters from Beyond the Grave,” we reported on a complaint for copyright infringement filed by William Faulkner’s literary estate against Sony Pictures, arising out of a single line spoken by Owen Wilson in Woody Allen’s Midnight in Paris: “The past is not dead. Actually, it’s not…

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When last we checked in with The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, Judge Denny Chin had certified the case as a class action on behalf of all “persons residing in the United States who hold a United States copyright interest in…

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Some of my favorite trademark cases involve “reverse confusion.” Instead of the usual scenario in which a rich and powerful senior trademark user crushes a little start-up for trading on its good name, the essence of a reverse confusion case is that a rich and powerful entity has flooded the market with much more promiscuous use of a…

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Patrick Cariou, a professional photographer, spent six years among the Rastafarians of Jamaica. and in 20oo he published a book of  portrait and landscape photographs taken during this sojourn.  Yes Rasta sold modestly, earning Cariou about $8,000 in royalties from sales of about 5700 copies. Four of those copies were purchased by appropriation artist Richard Prince. Prince, without…

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Dennis Morris was a photographer who recorded the Sex Pistols’ legendary 1977 tours, capturing at least one iconic on-stage image of Johnny Rotten and Sid Vicious.  Russell Young is an artist who found that image on the internet and used it, without Morris’s permission, in a series of Warhol-like pieces.  Morris v. Young, decided yesterday by Judge Gee of…

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As Professors Aufderheide and Jaszi write in their book Reclaiming Fair Use (Chicago 2011), “fair use  becomes real only when people use it; like a muscle, it can shrink with disuse.”  Kudos then to fulltime high school teacher Rob Rang and NFLdraftscout.com, for which Rang moonlights as an NFL Draft analyst.  It must have been…

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