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Seventh Circuit Seeks to Reign in the Fair Use Doctrine



By Scott E. Rogers of Ulmer & Berne LLP

Scott E. Rogers is a trademark/copyright partner at Ulmer & Berne LLP.

With the expansion of social media and broadening of art forms, sources of commentary, criticism and parody of anotherís copyrighted works are boundless. Musicians, artists, bloggers, authors, and countless others should understand that while it is often perfectly acceptable to use anotherís copyrighted work without asking for permission to do so, there are also times when permission must be obtained. Unfortunately, the line between a fair use of anotherís copyright and an infringement is often blurry. The U.S. Court of Appeals for the Seventh Circuit may have just blurred the line even more.

The U.S. Copyright Act not only grants the owner of a copyright the exclusive right to reproduce and publicly display the copyrighted work, it also grants the exclusive right to prepare derivative works based upon the copyrighted work.1 However, the fair use of a copyrighted work is not an infringement of copyright.2 The Copyright Act sets forth four factors that shall be considered in determining whether the use made of a work in any particular case is a fair use.3 These factors are:

(1) the purpose and character of the use, including whether su...

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