James P. Flynn, Member of the Firm and the Managing Shareholder of the firm’s Newark office, authored an article in ILN IP Insider, titled “Fair Is Foul, and Foul Is Fair: How TV Eyes May Help Us See Through the Blurred Lines & Fog Around Fair Use.”

Following is an excerpt:

ALL: Fair is foul, and foul is fair:/Hover through the fog and filthy air.

[MacBeth, Act 1, Scene 2]

What constitutes, or should constitute, “fair use” is an ongoing issue in copyright.  Indeed, it has been the focus of postings by this author about books and movies.  As the most recent of those postings noted in conclusion, we continue to struggle with “balanc[ing] the interests” of the newcomers wishing to transform the old into a newer art against “those of the original authors and artists to comfortably control their works.  The debate and contests continue.”  And so we ended there with a promise for a next blog to continue the process of examining the fair use issue—and we are happy to report that the Second Circuit’s February 27, 2018 decision in Fox News Network, LLC v. TVEyes, Inc. goes a long way in helping us differentiate fair from foul in this area and in lifting some of the fog seemingly inherent in fair use tests that eschew bright-line rules.  Thus, it is a useful ruling for lawyers in the United States to review, as well as in the EU where the issue of fair use is at much earlier evolutionary point.

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