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Bad Faith

Bad faith is defined as “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, “the bad faith of a defendant is not dispositive of a fair use defense” and “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.

Bad faith examples:

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."

Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 146 (SDNY 1968) - A publisher stole film negatives from the Time offices and then published graphic representations of the stolen photographs.

NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d. Cir. 2004) - Plaintiff NXIVM provides a manuscript to paid subscribers of its exclusive and expensive business training seminars. Seminar participants sign non-disclosure agreements, barring them from releasing the manuscript to others. Defendant Ross’s websites published material from NXIVM’s manuscript. 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.” 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).

Non-bad faith examples:

Blanch v. Koons, 467 F.3d 244 (2006) - artist Koons used Blanch's photo "without first asking her permission." In Acuff-Rose, the Supremes said, "being denied permission to use a work does not weigh against a finding of fair use" and this court concluded, "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."