By Amelia Brankov and Azita Iskandar (December 5, 2017, 5:54 PM EST) -- In July 2017, a New York federal court denied as premature artist Richard Prince's motion to dismiss photographer Donald Graham's copyright infringement lawsuit on fair use grounds.[1] In doing so, the court found that, due to the fact-sensitive nature of the inquiry, courts generally do not address the fair use defense until at least the summary judgment phase.[2] But two months later, another federal judge in New York had no problem granting a motion for judgment on the pleadings on the ground of fair use, finding that while discovery might yield additional information about the artist's intent in using the underlying work, such information was unnecessary to resolve the fair use issue.[3] In light of these disparate decisions, how are litigants to navigate these murky waters when deciding whether to file a motion to dismiss or a motion for judgment on the pleadings (so called Rule 12 motions) on fair use grounds? This article analyzes these and other recent fair use decisions and provides practice pointers for counsel considering whether to file such a motion....