Art, Whiskey and the Balance Between IP and Free Speech

U.S. Supreme Court Rulings Restrict Fair Use Defenses

“Though the long-term effects of the rulings are yet to be seen, the new precedent may bolster the value of intellectual property ownership while also encouraging more prudence as to uses that are not clearly justified by fair use or First Amendment interests.” – Sara Gold

In 2023, the U.S. Supreme Court issued two significant decisions affecting the viability of a fair use defense to copyright or trademark infringement. As to copyright fair use, Andy Warhol Foundation v. Goldsmith reduces the likelihood of fair use protection for an accused work whose purpose, medium and/or setting is similar in type to the original, even if there are other artistic changes. And as to trademark fair use, under Jack Daniel’s v. VIP Properties, product mock-offs are riskier because mimicking a trademark’s selling value, even in a parodic context, is considered presumptively unfair. This article, published in San Diego Lawyer, explains the two cases and their potential effects on intellectual property rights. 


Citation: Sara Gold, Art, Whiskey and the Balance Between Intellectual Property and Free Speech, San Diego Lawyer, 16-17 (Nov./Dec. 2023).

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