Bad Faith

Bad faith is defined as an “intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others” (People’s Law Dictionary). However, when it comes to fair use, “the bad faith of a defendant is not dispositive of a fair use defense. One court stated that “while the good or bad faith of a defendant generally should be considered, it generally contributes little to fair use analysis” (NXIVM Corp. v. Ross Inst., 364 F.3d 471). The following are several case examples where defendants acted in bad faith, and one example where the defendant did not act in bad faith. Because bad faith determinations are not dispositive of a fair use defense, these cases differ in their outcomes.

Bad Faith
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)
Defendants knowingly acquired a "purloined manuscript" for the purpose of preempting plaintiff's first publication rights. The Court noted that the defendants' "use had not merely the incidental effect but the intended purpose of supplanting the copyright holder's commercially valuable right of first publication." Ultimately the court determined that The Nation's use was not fair.

Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 146 (SDNY 1968)
Defendant Thompson illegally obtained copies of JFK assassination footage previously purchased in exclusivity by Life magazine, published by Time Inc. Thompson then wrote a book which contained graphic renditions of the stolen frames. The court determined these sketches to be infringing derivative works, yet ultimately permitted the use under the fair use doctrine by highlighting its appeal to public interest.

NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d. Cir. 2004)
Plaintiff NXIVM provided a manuscript to paid subscribers of its exclusive and expensive life-improvement seminars. Seminar participants signed non-disclosure agreements, barring them from releasing the manuscript to others. Defendant Ross’s published portions of NXIVM’s manuscript on two websites, with the intention of providing information to the public. Ross obtained the manuscript indirectly from a prior seminar participant, allegedly in violation of their non-disclosure agreement. The court noted that Ross “could have acquired the copyrighted manuscript legitimately,” by “pay[ing] the requisite fee to enroll in NXIVM’s seminars.”* However, the court ultimately still ruled in favor of fair use due to the transformative nature of the criticism and its inability to act as a market replacement for the original.

*See also, Rogers v. Koons, 960 F.2d 301, 309 (tearing off of copyright mark); Weissmann v. Freeman, 868 F.2d 1313, 1324 (total deletion of the original author's name and substitution of the copier's).

Not Bad Faith
Blanch v. Koons, 467 F.3d 244 (2006)
Artist Jeff Koons used photographer Andrea Blanch's photo in a collage "without first asking her permission." In regard to bad faith, the court noted, "it can hardly be said to have been an act of bad faith for Koons to have neither sought nor been granted permission for the use of [the photo] so long as ... the use is otherwise fair." The court ultimately determined the use fair, in large part due to the transformative nature of the use, and the lack of market impact (Blanch had never licensed any of her work, nor did she have future plans to).

Even when permission is sought, but denied, the Supreme Court has said, "being denied permission to use a work does not weigh against a finding of fair use" (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)).