Theories of Liability & Common Defenses

The fair use doctrine permits unauthorized use of copyrighted material when the use is transformative, for purposes such as commentary, criticism, news reporting, or scholarship. The four-factor test weighs: (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used; and (4) effect on the potential market. Post-Andy Warhol Foundation v. Goldsmith (2023) 598 U.S. 508, the "commercial purpose" factor weighs more heavily against defendants who charge for their uses.

The First Amendment may limit right of publicity claims when the challenged work adds significant creative transformation beyond mere celebrity likeness reproduction. Comedy III Productions v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 established the "transformative use" test: does the work add new expression, meaning, or message, or does it merely exploit the celebrity's identity? Expressly biographical or documentary works, and artistic works that transform the image into an original creative statement, are protected.

Works created by employees within the scope of employment, or works specially commissioned in nine enumerated categories with a written agreement, are "works made for hire" and owned by the employer or commissioning party — not the creator. This defense is frequently asserted in copyright ownership disputes involving studio employees, songwriters under staff agreements, and contractors working on audiovisual works. The disputed question of whether sound recordings are "audiovisual works" potentially exempting them from § 203 termination turns on this doctrine.

A party accused of unlicensed procurement under the Talent Agencies Act may argue that the activities complained of were lawful "management" advice rather than "procurement" — the line between advising on career strategy (lawful for unlicensed managers) and actively soliciting employment opportunities (requiring a license) is fact-intensive. After Marathon Entertainment v. Blasi, courts focus on whether the manager's activities were predominantly advisory or whether procurement was an integral part of the services rendered.

A defendant may defeat copyright and right-of-publicity claims by establishing an express or implied license. An implied license exists when the totality of the parties' conduct — including course of dealing, custom and practice, and acquiescence — indicates that the copyright or publicity-rights holder consented to the use. Non-exclusive oral licenses are valid in copyright (unlike exclusive licenses, which must be written) but require careful factual development.

Copyright infringement claims must be brought within three years of the claim's accrual — which under the discovery rule adopted in Petrella v. MGM (2014) means three years from when the plaintiff discovered or reasonably should have discovered the infringement. Right of publicity claims under § 3344 carry a two-year limitations period. The continuing-harm doctrine allows recovery for damages within the limitations period even when the initial infringement occurred earlier.