A recent Seventh Circuit decision, Brownmark Films v. Comedy Partners,[FOOTNOTE 1] breaks some interesting procedural ground by allowing a copyright defendant to assert — and prevail on — a fair use defense by way of a dismissal motion under Rule 12(b)(6). The decision underscores the dispositive role of comparing the works themselves, and confirms that where the court can make such a comparison it need not wait for any particular procedural juncture to resolve the fair use question. This result may be particularly helpful for defendants, such as the Comedy Central Network in Brownmark, who may avoid discovery completely where their fair use arguments are sufficiently compelling.
‘BROWNMARK’ BACKGROUND
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