I understood the Perfect 10 case to be decided not on the merits and on a pretrial motion, and that the standard for fair use is not the same. Almost certainly

I understood the Perfect 10 case to be decided not on the merits and on a pretrial motion, and that the standard for fair use is not the same. Almost certainly the plaintiff will make a prima facie case, and an affirmative defense is needed then only on the pre trial motion. If the case went to trial the statutory text(arguably)does not require it to be raised as an affirmative defense. I agree that Campbell v. Acuff-Rose Music supports it as an affirmative defense, but it is not the most modern case law even though it is the only modern supreme court case. Mattel v Walking Mountain Productions in the 2nd did not use fair use as an affirmative defense. Cariou v Prince, also in the 9th and denied certiorari is a modern case that did not depend on fair use as an affirmative defense. In the appeal they did question whether fair use is an affirmative defense specifically. Would you say that congress intended fair use to be an affirmative defense?