December 01, 2020 Feature

This Is Not Another Fair Use Article: The Implied License and De Minimis Use Copyright Defenses

Scott J. Sholder and Sara Gates

©2020. Published in Landslide, Vol. 13, No. 2, November/December 2020, 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.

What do tattoos and building-sized murals have in common? These two very different modes of creative expression have featured prominently in recent, noteworthy copyright litigations that have stoked the flames of debate over whether certain users of segments of creative works should be liable for copyright infringement. But the debate has not been over the issue of fair use—rather, it centers on lesser-known and sometimes overlooked defenses, namely, implied license and de minimis use.

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