Anyone knowledgeable of the subject please inform me . If I were to make an app with popular sneakers but not showing the logo and made profit from my app would that be considered copyrighting? Like say I use Jordan 11 model with everything exactly the same except no Jordan logo.
Sorry for the format. I copy and pasted it from my law school outlines. Based on the given facts, it is going to be infringement. Also, it would be hard to argue fair use because the four factors would weigh against you. If you have any questions, let me know.
i. What constitutes an infringement
1. The copyright owner must show SUBTANTIAL SIMILARITIES btw original work and the allegedly infringing work
2. Must also show
a. Ownership of a valid copyright AND
b. Infringer had access to the original work AND
c. Violated one of the exclusive rights listed
3. Extrinsic test
a. An obj comparison of specific expressive elements
4. Intrinisic test
Subj comparison that focuses on whether the ordinary reasonable audience would find the works SUBSTANTIALLY SIMILAR in the total concept and feel of the works
If you want to argue fair use, the court will use these four factors
i. FACTOR 1: PURPOSE AND CHARACTER OF USE
1. “Productive uses” – social, polit, and cultural benefits > losses to copyright owner
2. Question of whether nonprofit v. commercial
a. Wrong to conclude that commercial purpose immediately eliminates fair use. Simply moves pendulum against it. Doesn’t decide anything by itself
3. Duplicative or transformative?
a. Taking an existing work and doing something
ii. FACTOR 2: NATURE OF THE COPYRIGHTED WORK
1. Informational or creative work?
a. Facts are not protected by copyright
b. Look at original work’s nature
2. Whether or not orig, work is still available
a. If not avail, benefit to public of having it somehow get out there
b. If it IS, cutting into profit potentials
3. Published or not? – it matters if you take it out before it comes out
FACTOR 3: PORTION OR PERCENTAGE OF WORK USED
FACTOR 4: EFFECT OF USE ON MARKET
a. “This last factor is undoubtedly the single most important element of fair use”
