Fair Use Finding Without Discovery

, New York Law Journal


In their Copyright Law column, Reitler, Kailas & Rosenblatt partner Robert W. Clarida and Robert J. Bernstein of The Law Office of Robert J. Bernstein write: A recent Seventh Circuit decision breaks some interesting procedural ground by allowing a copyright defendant to assert - and prevail on - a fair use defense by way of a dismissal motion under Rule 12(b)(6). The decision underscores the dispositive role of comparing the works themselves, and confirms that where the court can make such a comparison it need not wait for any particular procedural juncture to resolve the fair use question.

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