Grey Areas in Fair Use Defense Continuously Confuse Artists

Products featuring George Bush’s artwork have been removed from the Society6 webpage. Mashable suggests, per Cariou v. Prince, the artist of the Bush inspired works could argue fair use. Just as a start to addressing this problematic assumption, the idea seems to ignore the fact that Prince’s work was found to be “transformative” whereas the Bush inspired works are merely prints of the paintings on various goods for commercial use. Likewise, Fair Use is an affirmative defense, meaning a maker must first be sued before they can attempt to argue it.

That being said, a closer examination of statues and proper reading of case law should be completed before artists rely on the Fair Use defense.