Deborah asked me this:
One of my students had a question about this sentence from p. 3 of the Fair Use Section of your book: “Note importantly that in adjudicating descriptive far use claims, most circuits do not seek to apply whatever test the Supreme Court may have proposed in KP Permanent.” I imagine you don’t mean the holding about the burden of proof, right? So what do you see this opinion doing that most other courts are not following? I wasn’t sure— and I loved the thoughtfulness of the question— and want to make sure I answer it correctly.
This seems to me to be a great catch by the student and I definitely need to change that sentence because it’s ambiguous. I meant only that the KP court did not apply any kind of three-step test to determine fair use. But lower courts definitely follow the burden of proof reasoning of KP Permanent and reject the 9th Circuit approach.