ComicMix, LLC, et al. v. Dr. Seuss Enterprises, L.P.

Section 106 of the Copyright Act, which sets forth the exclusive rights granted to authors, states that all exclusive rights are “subject to sections 107 through 122.” 17 U.S.C. § 106. Therefore, the exclusive rights under Section 106 do not extend to Section 107, which states that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. The first question presented is: Whether fair use is a right of authors, thus placing the burden on plaintiffs to prove that fair use does not apply on defendants who assert that they made fair use of the allegedly infringed works.

Section 107 of the Copyright Act sets forth four nonexclusive factors to consider when determining whether the use made of a particular work is fair. Among those four factors is “the effect of the use upon the potential market for or value of the copyrighted work.” The second question presented is: Whether the copyright holder bears the burden of proving the effect of the use upon the potential market for the copyrighted work, as the Second, Fourth and Eleventh Circuits have held, or whether the alleged infringer bears the burden, as the Ninth Circuit, in the decision below, has held.