One added thought would be: is the spoof parodying the Times as well? The NYT has been heavily criticized for its reporting in the run up to the current war; could the spoof be seen as critical commentary about this? If so, that only strengthens the fair use defense for the spoof. Thanks!

While parody is certainly the stronger argument, the newspaper seems a bit closer to a satire to me. I haven’t read that 9th Circuit case you mentioned, but Acuff-Rose only said that since satire, unlike parody, doesn’t require the creator of the second work to refer to the first work in order to make its point, the creator of the second work must have some justification for using elements of the first work in his satire.

In this case, I’d say that the Times-SE creators have a decent argument: they wanted to satirize current events, which is very effectively done through the use of a newspaper. The effectiveness of the satire is partly dependent on tricking people into thinking they were reading real news stories. The NY Times is a universally recognized, highly respected newspaper, so imitating it disguises the fake news stories well. The Times-SE creators would probably also add something about the added impact of discovering the paper is fake and the moment of thought that it generates. The fact that the Times-SE was given away instead of sold works in its favor as well, since commercial uses weigh against a fair use finding (but do not make it presumptively so).

The nature of the copyrighted work shouldn’t weigh very heavily here. Newspapers do contain protectible expression, but the question of whether the general layout and typeface of the NYTimes are protectible under copyright is a deeper question I don’t feel like getting into. The essential point is that the judge will look at whether the NYTimes is at the “core” of what copyright is meant to protect. My sense of the “core” is that it refers to creative expressions. The NYTimes’ layout and typeface are essentially creative decisions, but typefaces often get short shrift under copyright law and the layout is at least partly dictated by the content.

The amount and substantiality of the copying shouldn’t weigh heavily against Times-SE either. They didn’t even copy the expression in any NYTimes article, only the general layout and typeface. It does evoke the NYTimes’ image, but the NYTimes doesn’t sell because of its layout and typeface, it sells because of the reporting and expression in its articles. I view this as less of a taking than what 2 Live Crew took from “Oh Pretty Woman” in Acuff-Rose.

Times-SE’s ace in the hole here is the effect of its satire on the NYTimes’ market. The Times-SE is not meant to be a real newspaper and it is a one-time political statement. It reports fictional news stories, so Times-SE has a good argument that it cannot possibly compete with the NYTimes’ reporting and the use is “transformative.” Through satire, it adds to the original work, rather than “merely supersed[ing]” it, by causing readers to stop and think “what if this really was the news?” While there is a market for fake news (The Onion is one example), the NYTimes would have a stronger case if it offered some evidence that it meant to enter into that market in the near future.

The first and fourth factors I mentioned have been the most weighty in fair use cases, so the fact that they don’t clearly militate against a fair use ruling should leave Times-SE optimistic. As for trademark, you’re on your own with that.

That’s my quick, general view of things. If anyone sees a glaring error in there, please point it out! My outline will thank you.