Judge Fogel says if parties can’t settle, the issue of the dancing baby vs. Prince and Universal, a jury will have to decide what is fair use.
“As the Ninth Circuit recently has observed, the process of making a fair use determination ‘is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment,’” wrote Fogel.
At the same time, Fogel wrote that EFF will have to prove “a demonstration of some actual knowledge of misrepresentation” on the part of Universal.
Up to now, no case like this has gone to a legal decision about Fair Use. All the cases have been settled before judgement, which means there isn’t any case law to guide Fair Use determinations and judgements.