Within a couple of months of each other, two panels of the 9th U.S. Circuit Court of Appeals issued decisions in which the use by one author of another’s copyright material was defended on the basis of the Copyright Act’s "fair use" defense. In one instance, involving Mattel’s "Barbie" doll, the court found the use to be a prototypical parody and, thus, protected "expression and criticism of a cultural icon."

In the other instance, the court found that the author of a video biography about another cultural icon, Elvis Presley, used without permission too much of the copyright works of others, and affirmed a preliminary injunction prohibiting the video’s distribution.

The 9th Circuit’s different applications of the fair use defense to two concededly "transformative" works underscores just how difficult it is for an author to know at the outset whether his or her use of another's copyright material ultimately will be treated as a legitimate criticism or commentary and, therefore, a fair use, or as an excessive and commercially opportunistic use and, therefore, an infringement.

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