It’s been an interesting few weeks recently for fair use and First Amendment arguments in copyright and trademark.
There was Cambridge University Press v. Becker, the Georgia State course reserves case on fair use in copyright. Point – fair use.
Also on the copyright side, the Seventh Circuit gave us Brownmark v. Comedy Appeals, the South Park case. It turns out, according to the Seventh Circuit, not only that parody may “reasonably be perceived” (to borrow the language of Campbell v. Acuff-Rose Music) but that parody may be so obvious on the face of the parties’ works that a parody defense may be sustained on a motion to dismiss. Another point – fair use.
In trademark law, a First Amendment defense prevailed, mostly, in University of Alabama v. New Life Art, the Daniel-Moore-painting-Crimson-Tide-football case. Point – the First Amendment.
Between Becker and New Life, IP lawyers and licensing offices at colleges and universities will have their hands full this Summer trying to figure out what moves to make next.
And now Louis Vuitton has lost its claim that Warner Bros. misused the LV trade dress in Hangover 2. The court accepted the argument that the fake LV bag used in the movie was artistically relevant, which may be the first and only time that the words “artistic” and “Hangover 2” have been used in connection with each other. Still, point – the First Amendment.
All of which leads up to my enjoying this op-ed in last Sunday’s New York Times: “Fair Use, Art, Swiss Cheese and Me,” which concerns the much-anticipated decision of the Second Circuit in the Richard Prince / Patrick Cariou case.