©2019. Published in Landslide, Vol. 11, No. 6, July/August 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Academics have long warned that courts often stray from precedent when analyzing the four fair use factors provided by § 107 of the U.S. Copyright Act.1 As one scholar put it, judges have a tendency to “stampede” through the factors to arrive at a presupposed outcome.2 A recent decision from the Southern District of New York, Magnum Photos International, Inc. v. Houk Gallery, Inc.,3 is particularly notable for straying from precedent and allowing such stampeding. This recent decision may provide online media companies with confidence to embrace business models that depend on infringement. After all, the decision essentially guts the statute of its factors and allows fair use solely on the basis of whether the infringer’s purpose differs from that of the creator. However, such confidence should be tempered. This article argues that the Magnum Photos decision is misguided on a number of levels and should not be seen as the new direction of fair use.
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