Last year, I blogged about the Cloud Gate case where Mr. Kapoor sued the NRA for copyright infringement for including briefly in a video his famous Cloud Gate sculpture located in Chicago, Illinois. At the end of 2018, the case was transferred to the Eastern District of Virginia (Case 1:18-cv-1320-LMB-TCB). During a pre-trial conference, the parties focused on the NRA's affirmative defense of fair use (Dkt 71). Shortly after, the parties agreed to dismiss the case (Dkt 73).
Fair use is a complex factual determination that examines four factors:
1. The purpose and character of the use (i.e., whether the use was transformative),
2. The nature of the copyrighted work,
3. The amount and substantiality of the portion taken, and
4. The effect of use upon the potential market
Although the NRA would bear the burden of proving that its use was fair use, it looks like the parties found a simpler way to resolve their dispute. The NRA appears to have removed the Cloud Gate sculpture from the video.
Image is from the Complaint at p3