I got into a tussle with an attorney in another forum about fair use and whether it is decided by a judge or a jury. He appeared to be claiming that because fair use has its origins in equity, it is decided by a judge. My rather limited research seemed to indicate that in most cases when damages are involved, if a jury is demanded, it is decided by a jury. Just like any other issue, a judge may decide fair use as a matter of law if there are no genuine issues of fact involved.
The clearest statement I could find in an actual case was the following:
"Fawcett contends that since the defense of fair use is an equitable
defense, plaintiffs are not entitled to a jury trial on the question
of fair use in any event. In this case, however, the plaintiffs are
clearly seeking money damages for losses they allegedly incurred as
a result of defendants' purported infringement. This is a legal
claim as to which they are entitled to a trial by jury. The fact
that the defendants interpose a defense which they denominate as an
"equitable defense" does not deprive the plaintiffs of their right
to have a jury determine the merits of their claim if the case is
otherwise appropriate for submission to a jury."
Meeropol v. Nizer, 417 F. Supp. 1201, 1213 (S.D.N.Y. 1976).
And from another case:
"The fair use defense turns not on hard and fast rules but rather on
'an examination of the facts in each case.' ... The four factors
listed in Section 107 raise essentially factual issues and, as the
district court correctly noted, are normally questions for the jury."
Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1258 (2d Cir. 1986).
Is there more to this than meets the eye of the Second Circuit? Is there any disagreement among the circuits on this score?
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