The First Amendment has entered the picture. Elon Musk, Tesla, and Warner Brothers Discovery have all raised a First Amendment defense, even ordering it ahead of their fair use defense.
The case involves Musk’s use of a scene shown below in a Tesla event. Tesla had earlier tried to license the use of a still from the movie Blade Runner 2049 made by Alcon Entertainment. After negotiations failed, Musk used the below image.
We will have to wait and see whether (and, if so, how) the lawyers for the defendants advance a First Amendment defense. Raising a defense in an answer doesn’t mean it will be pursued.
But a First Amendment defense strikes me as especially appropriate when plaintiffs attempt to assert the untested new theory of “copyright dilution,” which as I explain in a recent paper is unconstitutional. I’m not sure if copyright dilution is being asserted in this lawsuit, but, if it is, then a First Amendment defense is warranted.
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