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fair use factors

Below is additional information on the four factors of fair use.  Copyright and trademark fair use factors are completely different and fair use could not have been applied across the board to my trademark as they were my copyrights.  The judge asked my attorney if he didn't have to rule on anything else separate  for my trademark and my attorney, without my authorization or knowledge, told him that he was correct.  It was not.  

 The Fair Use provisions of the Copyright Act allow an individual to copy and use copyrighted material for specific purposes — including criticism, comment, news reporting, teaching, scholarship, or research — that serve the public interest as determined by four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for or value of the copyrighted work.

I wholehearted believe the four factors that determine 'fair use' weigh in favor of my business and not the favor of Ms. Kenneally's company.  While the fair use statute lists 'teaching' as a purpose for fair use, I only seem to see that coupled with for 'not for profit' purposes.  

  • 1) Purpose and Character of the Use.: Commercial or Not For Profit? Jacqueline Kenneally was selling ‘Michel Keck’ art kits for commercial purposes.  The school teachers I've given permission to use my copyrights and trademark for Michel Keck classes have always done so in not for profit situations.   Ms. Kenneally's 'Michel Keck' kits were sold on a website that was accessible by anyone 24/7 - 365.   

*taken from the Columbia University website https://copyright.columbia.edu/basics/fair-use.html

FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE

The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important at the university. But be careful: Not all nonprofit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose. However, limiting your purpose to some of these activities will be an important part of claiming fair use.

It specifically states 'nonprofit educational purposes' above it does not say commercial educational purposes. In fact, almost every article and post you find on factor 1 repeatedly states 'nonprofit' educational purposes. 

  • 2) Creative or Factual.  Most argue that because copyright laws do not protect facts and data, but protect creative works, that it is difficult for a fair use ruling to be applied when the work in question is creative.  Most artists works are creative and not factual. 
  • 3) Amount and Substantiality: My exact images were included in the kit. So the amount of my work used is 100%.  According to the copyright office using the 'heart of the work' is considered less likely to be fair. (https://copyright.psu.edu/copyright-basics/fair-use/)  
    • 4) Potential Market Value:  If other's are allowed to use an artist's copyrighted images and trademarks, for their own profit and without the artist's consent, (under the guise of 'educational purposes'), then what happens to the artist's potential market value to teach their own art classes of their own works? If tomorrow I find 10 companies now doing what Ms. Kenneally is doing because it is considered fair use please explain how that does not harm my potential market value of selling my own art kits?