Courts Should Employ a Simpler Fair Use Analysis for Noncompeting Criticism

Copyright and trademark rights act in tension with the First Amendment. Indeed, “unlike other property rights, [these] are a form of content-based, government-imposed speech restriction.” (Mark Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 206 (1998)). As such, courts have determined that criticism, generally, puts the critic beyond the reach of a copyright or trademark claim. Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003) (discussing criticism as a “built-in First Amendment accommodation[]”); Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003) (“[T]he First Amendment protects critical commentary when there is no confusion as to source.”).

This approach to criticism, however, hasn’t been quite clear enough to prevent dubious lawsuits. Take Cooperstown Properties, LLC, et al. v. Duffield et al., No. 6:25-CV-1079, 2026 WL 2938431 (N.D.N.Y. Sept. 30, 2026). There, the plaintiffs alleged copyright and trademark infringement based on a video, titled “Cooperstown, Where 12 Year Olds Dreams Go To Die” (the “Video”), that satirizes the supposed expense and hassle of the plaintiffs’ youth baseball activities. The ideas discussed in this article should help prevent cases like Cooperstown from happening.

The Judge Seemed to Betray Her Skepticism of the Claims in Cooperstown

The Video is outrageous and unforgiving. District Judge Elizabeth Coombe’s opinion reflects that. It reads like I can see her brow furrow as she wrote it. I don’t know Judge Coombe though, so much of this is speculation.

First, she recounts the facts with verve. The defendants’ social media channels, called “Baseball Doesn’t Exist,” are presented as known commodities among fans, with over 1 million YouTube subscribers. This is important context: this level of popularity can create significant advertising revenue, but also a lower likelihood of confusion about the nature of the content.

She covers the tonal changes and visual transitions. The Video uses “nostalgic inflection” and applies a “mocking tone.” The Video lays on the profanity: “Dad’s working overtime and Mom just got a second job to afford this shit,” all just to put a kid up against another “kid from Florida [who] hit 19 home runs in a fucking week last year.” The Video is one minute, 50 seconds of snark.

Second, Judge Coombe’s copyright and trademark analysis suggests a “Puh-lease!”-type of tone. In the copyright portion, she describes how the Video “ridicul[es]” the plaintiffs with a “sarcastic-laden narrative.” With tongue planted firmly in cheek, she points out that the plaintiffs failed to “plausibly allege that they have any future potential market prospects in creating social media content criticizing Dreams Park.” In other words, in no universe would the plaintiffs monetize content that makes fun of their own stadium. In the trademark portion, in a similar vein, Judge Coombe notes that there’s no “likelihood that Plaintiffs would enter Defendants’ market in the future, or that consumers will perceive Plaintiffs as likely to do so.”

Simple Rules Will Prevent Cases like Cooperstown

Judge Coombe spent pages to reach her conclusion. Isn’t there a better way? I’ve previously written on noncompetitor criticism and trademark law. I asked for a simple rule: noncompetitor criticism of the trademark owner can’t be infringing.

A similar rule should apply to copyright. Criticism can target (1) the copyrighted work itself; and/or (2) a subject associated with the copyrighted work. For example, type (1) might involve using clips of a movie to criticize the filmmaking, while type (2) involves using clips to criticize one of the actors who’s embroiled in scandal. My rule applies to both types. 

With that in mind, my rule is simple: noncompeting criticism is nearly always fair use as a matter of law. Prevent pages of fair use kabuki. My rule incorporates all four fair use factors. For Cooperstown, it’s simple: the accused monetized (first factor) video incorporated three images and 11 seconds’ worth of snippets (third factor) from Cooperstown’s images/videos (second factor), using sarcasm and profanity to mock (first factor) Cooperstown’s programs in a way that wouldn’t substitute for Cooperstown’s original works. Noncompeting? Check. Criticism? Check. Sure, “[t]he task is not to be simplified with bright-line rules, for the statute . . . calls for case-by-case analysis.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). But this metaphysical caveat ignores the implausibility of exceptions to my rule, which, regardless, isn’t quite bright line, as it clearly requires case-by-case analysis.

I don’t expect any court, even an appellate one, to adopt my rule in one case. I think courts can get there eventually though, by using incrementally simpler discussion to eliminate copyright cases involving noncompeting criticism. In conjunction with granting attorney fees to defendants, simpler opinions will send a clear message to would-be IP aggressors.

We’ve got just enough doctrine to get there. First, fair use “is flexible [and] courts must apply it in light of the sometimes conflicting aims of copyright law, and that its application may well vary depending upon context.” Google LLC v. Oracle Am., Inc., 593 U.S. 1, 20 (2021). Second, courts have come close to saying what I’m proposing: fair use dictates when a video is “undoubtedly transformative secondary use intended as a form of criticism, and all of the alleged harm arises from the biting criticism of this fair use, not from a usurpation of the market by defendants.” Santos v. Kimmel, 745 F. Supp. 3d 153, 167 (S.D.N.Y. 2024), aff’d, 154 F.4th 30 (2d Cir. 2025) (quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471, 482 (2d Cir. 2004)) (internal quotations and citations omitted).

Courts, Do Yourselves a Favor

I get the sense that many courts, upon seeing dubious copyright and trademark claims, yearn to “decide the merits of the claim without discovery or a trial.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 692 (7th Cir. 2012). Go one better: discourage the cases from being brought in the first place. Courts, take a hard stand.

Image Source: Deposit Photos
Author: Zerbor
Image ID: 749249790