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Foley & Lardner LLP partner Naikang Tsao authored the Westlaw Today article, “Still too subjective: the Copyright Act’s fair use defense after Andy Warhol Foundation v. Goldsmith,” exploring how precedential opinions demonstrate how the fair use defense against copyright infringement under 17 U.S.C.A. § 107 is often subjectively interpreted.
Tsao assesses the U.S. Supreme Court’s 2023 decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which involved the fair use defense to copyright infringement, as well as Kienitz v. Sconnie Nation, LLC, both cases that highlight the difficulty of applying factor one and factor three of the § 107 analysis: the purpose and character of the use and the amount and substantiality of the use.
“In sum, Kienitz and Goldsmith show that the subjectivity inherent in factors one and three of § 107 makes them unreliable predictors of the strength or weakness of a fair use defense, and litigants should focus their efforts on arguments related to market impact under factor four,” Tsao concludes.
