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The boundaries of fair-use are clearly deliberately vague in that they are often commented on as being a ‘rule of thumb for contextual assessment as not to stifle creative development’ in one way or another.

In maybe the most definitive test on copyright fair use for Quiz generation CASTLE ROCK ENTERTAINMENT INC v. Beth B. Golub, Defendant-Cross Defendant-Appellant poses that the publication of the book does not meet fair-use as it is not transformative enough (but that it is therefor somewhat).

Had the quiz publication been:

  1. Free and offered without any commercial reward to the publisher;

  2. Framed itself as being available as a resource to study Seinfeld lore or storylines for the basis of winning pub quizzes or licensed commercially available quizzes made by the copyright holder, as a “tool to win arguments on Seinfeld questions”;

  3. Not used Seinfeld artwork and quotes outside of the use of the transformative quiz questions, ie, the publication was simply named “Our Ridiculous Existence” and used no screenshots or logos from the copyrighted material;

  4. Positioned themselves as using information which is “public knowledge” owing to the fact the tv show had been freely available for people to watch, become obsessed with, and recollect vast amounts of knowledge on at-will from a fanatic memory without need for particular reference.

Would the scope of free-use have shifted in the defendants favour?

Additionally the 11th footnote of 1 references:-

4 Nimmer § 13.05[A][4], at 13-181-13-182

Suggesting if the Seinfeld copyright holders had already published their own quizzes, there would be a stronger argument of fair-use because that additional market would already be penetrated. What legal logic follows for that conclusion? It sounds like the judge says if Harry Potter releases a licensed quiz, for example, others should be able to with fair-use of the copyrighted subject matter?

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