Does Your Rule 12 Motion Based On Fair Use Have A Chance?

Law360, New York (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...
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