Fifth Circuit Affirms Fair Use Defense in Copyright Case

Fifth Circuit Affirms Fair Use Defense in Copyright Case

The U.S. Court of Appeals for the Fifth Circuit affirmed the application of the fair use defense to copyright infringement, ruling that this was a district court case super spontaneous Invoking a fair use defense to parallel trademark claims was a harmless mistake. The court also confirmed that the district court did not abuse its discretion in awarding attorneys’ fees based on the applicable party standard for copyright claims. Keck v. Mix Creative Learning Ctr., LLCCase No. 23-20188 (5th Cir. September 18, 2024) (JonesSmith, Ho, JJ.)

Michel Keck, a multimedia artist, sued Mix Creative Learning Center, a Texas-based art studio, for copyright and trademark infringement after Mix Creative sold art kits containing Keck’s dog-themed artwork and a short biography intended for home learning during of the year were thought of as a pandemic. Keck had registered her Dog Art series (in the form of decorative works) with the US Copyright Office and her name as a trademark with the US Patent & Trademark Office. Keck claimed that Mix Creative’s art kits violated her rights. After learning of the lawsuit, Mix Creative immediately stopped selling its kits.

Following discovery, both parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of Mix Creative on Keck’s copyright claim, finding fair use, and also granted summary judgment on the trademark claim super spontaneousas both parties had agreed that the fair use defense applied to both claims. Additionally, the district court awarded Mix Creative more than $100,000 in attorneys’ fees and costs, but declined to hold Keck’s attorneys jointly and severally liable.

Keck appealed, challenging the copyright fair use determination and that of the district court super spontaneous Applying the fair use defense to the trademark claim. Mix Creative challenged the district court’s refusal to hold Keck’s attorneys jointly and severally liable for the fees.

The Fifth Circuit affirmed the district court’s application of the fair use defense to Keck’s copyright claims. The court focused on the first and fourth factors of the fair use defense (the purpose and nature of the use and the effect of the use on the potential market or value of the original work), noting that courts typically specify these two factors special attention.

As to the first factor, the Fifth Circuit found that the use of mix creative was transformative. Although Mix Creative is a commercial venture, the art sets served an educational purpose that was distinct from the decorative purpose of Keck’s original works. Therefore, the likelihood of Mix Creative’s kits serving as replacements for Keck’s original works on the market was slim.

The fourth factor also favored Mix Creative, as the Fifth Circuit found no evidence that Mix Creative’s kits would adversely affect the market value of Keck’s original decorative works. In fact, the court suggested that the jerseys could boost Keck’s reputation and sales by giving her free advertising. Additionally, Mix Creative operated in a different market (educational rather than decorative), and Keck had no experience selling derivative works for children’s art classes. The court ruled that the inclusion of publicly available images in Mix Creative’s kits would not affect the market for Keck’s professional reproductions.

The Fifth Circuit also affirmed the district court’s decision super spontaneous Applying fair use to Keck’s trademark claim because both parties agreed that the fair use arguments applied to both the copyright and trademark issues. Finally, the court affirmed Mix Creative’s award of more than $100,000 in attorney’s fees, noting that “the award of attorney’s fees to the prevailing party in a copyright case is the rule rather than the exception.” The court did not award one found an abuse of discretion in the district court’s decision not to hold Keck’s attorneys jointly and severally liable for the awarded fees and costs.

Exercise note: Ultimately, the fair use defense protected Mix Creative from both copyright and trademark infringement claims. The Fifth Circuit’s ruling underscores the importance of considering invoking the fair use defense in cases involving educational or transformational purposes.