The Fair Use Defense to Nowhere


Last Wednesday I wrote about the parody fair use defense to trademark infringement in connection with the Facebook v. Lamebook lawsuits. Since then another party has asserted the fair use defense, this time in regards to copyright infringement.

Last week the on-line news source, Gawker, published images of more than 20 pages of Sarah Palin’s not yet available book entitled “America by Heart.”

After Palin tweeted about the illegality of the leak Gawker responded that Palin should familiarize herself with the copyright fair use defense. Apparently Gawker should have taken its own advice, because the Supreme Court ruling in a similar leak (of Gerald Ford’s then-unpublished autobiography) held that the fair use defense did not apply. In that 1985 Harper & Row decision the Supreme Court held that the fair use defense was considerably weaker in the case of unpublished works.

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