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January 2014

MLRC Bulletin 2013 Issue 3

Fair Use is Foul and Foul Use Is Fair; Making Fair Use More Client-Friendly; Literary License(s): Fiction and Video Games
in this issue

New Developments 2013

INTRODUCTION Right of publicity law and video games were the subject of two of this year’s most interesting and debated decisions. A divided Third Circuit panel reinstated a former college quarterback’s right of publicity claim against video game maker Electronic Arts over the use of his likeness in EA’s NCAA Football video game series. Hart…

Fair Use is Foul and Foul Use is Fair: Legal Certainty or Witches’ Cauldron?

By Mickey H. Osterreicher* To say “it’s complicated!” is in itself an oversimplification of fair use. Unfortunately far too many people have taken recent copyright decisions involving fair use as a green light that almost any work is subject to appropriation once “transformativeness” has been satisfied. Nowhere is this more prevalent than in the use…


Making Fair Use More Client-Friendly: The Set of Principles in Fair Use for Journalism

By Patricia Aufderheide and Peter Jaszi* Executive Summary Fair use has long been regarded with trepidation by many media creators, even while it has been a staple of media creation, including in works produced and distributed by large and small media companies. Fair use is rarely litigated, and then often regarding unusual or liminal situations….


Literary License(s)? Why the First Amendment Protects Fiction and What This Means for Video Games

By Patrick Kabat* [T]he range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction.[1] Two recent right of publicity cases involving the video game NCAA Football have elicited a great deal of handwringing about the right’s impact on…

Sex, Lies and Section 230

By John C. Greiner* Section 230 of the Communications Decency Act is, perhaps, the single most effective tool for protecting free expression on the Internet. But with great power comes great responsibility. Congress initially envisioned the statute as a means of protecting Web sites from the awkward and often-inconsistent application of print-media law to an…

MLRC Bulletin 2013 Issue 3

 Download Publication Sex, Lies and Section 230By John C. Greiner Literary License(s)? Why the First Amendment Protects Fiction, and What This Means For Video GamesBy Patrick Kabat Making Fair Use More Client-Friendly: The Set Of Principles In Fair Use For JournalismBy Patricia Aufderheide and Peter Jaszi Fair Use Is Foul and Foul Use Is Fair:…