Re: Re: fourth fair use factor

If the plaintiff isn't "out to make money" based on their work, logic suggests they'd be unlikely to bring suit, leading to a paucity of the caselaw you desire ;)

If I'm correct in understanding that you were seeking input on the question of the fair use defense, not on the question of infringement, perhaps this pointer may help. There is probably a whole lot of on-point examples & language (each way) in cases where plaintiff isn't "out to make money" in the _same market_ as defendant, but may be trying to make money in others, and there is squabbling over market impact & the relevant market to measure.

I'd point to Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (fair use defense failed, 4th factor favored plaintiff, defendant's sculptor's effect on potential market negative, regardless of the fact that plaintiff photographer wasn't trying to make money 'in sculpture market.')

It seems to be an acceptable (though probably distinguishable) 'meatspace' example of what you were looking for, but Dr. Cole's framing cases seem better 'web' examples.

> From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Jessica R. Friedman
> Sent: Thursday, October 26, 2006 4:55 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] fourth fair use factor
>
> Is anyone aware of a fair-use decision in which the court found that the fourth fair-use factor favored the plaintiff even though the plaintiff did not derive any monetary compensation from permitting people to reproduce its works? That is, the plaintiff permitted people to reproduce works from its Web site, but did not charge for the privilege?
>
> Jessica R. Friedman
Received on Tue Oct 31 2006 - 18:55:01 GMT