The U.S. Fifth Circuit Court of Appeals addressed the fair use defense in a copyright dispute in Keck v. Mix Creative Learning Center, L.L.C., 116 F.4th 448 (5th Cir. 2024). In this case, Mix Creative began selling art kits online so students could learn during the pandemic. The kit included PowerPoint slides featuring an artist’s biography and artwork samples, along with a lesson plan and supplies. Michel Keck was one of the artists whose work was featured in the art kit. Jacqueline Kenneally discovered Keck’s dog-themed artwork online, after searching Google Images for paintings of dogs. She decided the artwork would interest her students and copied the images from the internet for the kits. The kits included printed out slides with full images of Keck’s artwork and supplies including paint, paint brushes, collage paper, and a lesson plan. Only six Keck-inspired kits were purchased, for a total of $240. Keck filed a civil action against Mix Creative and its sole proprietor, Jacqueline Kenneally, alleging copyright infringement. When the defendants were notified of Keck’s lawsuit, they immediately stopped selling the Keck-inspired kits and removed the category of art kits from the website.
After Keck filed the action claiming copyright infringement, the district court granted summary judgment in favor of the defendants based upon the fair use defense. The fair use defense is codified in 17 U.S.C. 107 and lists several examples of fair use, including criticism, comment, news reporting, teaching, scholarship, or research. Courts apply four factors to determine whether the use of a particular work is fair, including: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The Fifth Circuit noted that the central question of the first factor is whether the new work supersedes the object of the original creation or instead adds something new, with a further purpose or different character. Citing the U.S. Supreme Court decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct.1164 (1994), the Fifth Circuit found that the use of the work was transformative as the art kits had an educational purpose that was significantly differing from the original, decorative purpose of Keck’s dog-themed artwork. Pointing to the recent Supreme Court decision in Andy Warhol Found. For the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 143 S.Ct.1258 (2023), Keck argued that the purpose of the infringing work was substantially the same as the purpose of the original photograph, namely “the online, e-commerce sales of Keck’s entire works.” However, the Fifth Circuit concluded that the art kits had an educational objective, while the original work had a mere aesthetic or decorative objective and thus, the purpose of the use was not substantially the same. The Court noted that there was little threat that the art kit would serve as a substitute for the original work; Mix Creative does not participate in the same market as Keck. The Fifth Circuit found that the district court correctly rejected Keck’s copyright claim and that the district court did not abuse its discretion in finding Keck, not his counsel, liable for over $100,000 in attorneys’ fees, citing 17 U.S.C. 505.