Is Shepard Fairey entitled to a jury trial on fair use? Good authority says yes.

Quite plainly the question is a vexed one: does a defendant in a copyright infringement lawsuit have the right to have a jury decide whether his use of the copyrighted material constitutes non-infringing fair use as a “question of fact”? Or is the fair use defense a “question of law” that a judge can decide without a jury?

We may have that question decided early next year in the lawsuit between Shepard Fairey and the Associated Press over Fairey’s use of a copyrighted AP photo as the source of the image in Fairey’s Obama Hope Poster. Fairey has requested a jury trial.

But no less an authority than Bill Patry believes that the question is one for a jury and thus that Fairey’s defense to AP’s claim of infringement should be determined by a jury.

And now comes Christopher E. Meatto to point us to another authority pointing the same way: Professor Ned Snow has published “Untangling Fair Use as a Matter of Law.” In his abstract to the article, Snow writes:

Fair use is an issue of fact for the jury. Or at least it should be. Recently courts have been perverting the centuries-old practice of treating fair use as a factual issue. Courts must therefore repent: they must return to construing the issue as factual. Yet even if they do, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, this Article examines whether appellate courts should ever review fair use decisions under a de novo standard. It also examines whether trial courts should ever decide fair use on summary judgment. The Article concludes that the speech nature of fair use necessitates deciding the issue as a matter of law in certain circumstances: appellate courts should review constitutional findings under a de novo standard, but only where a bench trial occurs or where a jury verdict favors the copyright holder; trial courts should rule on summary judgment, but only for fair users. In short, ruling as a matter of law must serve the speech-protective function of fair use. Fair use as a matter of law must favor fair users.

A couple of small laughs

A couple of amusing things this morning, a dismal day here in Detroit.  First, from CNet comes the news that

A British woman has reportedly been kicked off a jury for posting a “note” on Facebook asking her friends what they thought of the trial.

She was given the boot after the court received a tip about the posting. . . .

The woman’s name has not been released, but the court appears to have been Burnley Crown Court in Lancastershire, and the case involved child abduction and sexual assault. According to The Sun, the woman posted details of the case on Facebook and added, “I don’t know which way to go, so I’m holding a poll.” Yeah, that’s bad.

The trial is said to have continued with 11 jurors instead of 12.

 And from Overlawyered comes the tip that Sullivan & Cromwell, a major and very established New York City law firm, employs an attorney named Soo Yoo.  Which reminds me of William Gaddis’s A Frolic of His Own, in which 

Oscar Crease [is] a college instructor who is suing both a film company and himself.  Firstly, he is convinced that a Hollywood mogul has plagiarised an unpublished play of his about the American Civil War and turned it into a blood-and-guts blockbuster.  Secondly, he has managed to get himself run over by his own car while hotwiring it and, through the insurance company, he is claiming damages against himself. 

The brand of Crease’s Japanese car? Sosumi.