U.S. Copyright Case Law

Some notable U.S. court cases for photographers

Hierarchy of U.S. case law: Supreme Court; Circuit Court; District Court.

Copyright and Photography

Case name, yearFindings
Wheaton v. Peters, 1834Copyright is a statutory law, not a common law, and is subject to limits.
Stowe v. Thomas, 1853Impetus to make copyright a property right.
Burrow-Giles Lithographic Co. v. Sarony, 1884Extended copyright protection to photography as “an original work of art.”
Bleistein v. Donaldson Lithographing Co., 1903

A photo of an actual event can be protected.

“That the photographs were intended solely for commercial use has no bearing on their protectibility.”

Bobbs-Merrill Co v. Straus, 1908Established the “first sale” doctrine, basis of §109(a) of the Copyright Act of 1976
Ets-Hokin v. Skyy Spirits, 2000“Indeed, the idea that photography is art deserving [copyright] protection reflects a longstanding view of Anglo-American law.”
Eldred v. Ashcroft, 2003Congress can retroactively extend the duration of works still under copyright.
Golan v. Gonzales, 2005Congress may not retroactively restore copyright in works that have fallen into the public domain.

Registration

  1. General
  2. Definition of Published

Copyright: Registration

Case name, yearFindings
Morgan v White Rock Distilleries, 2002

“The Copyright Act makes clear that copyright exists in all works of authorship regardless of whether the copyright for such work is registered.”

“[C]opyright registration is a jurisdictional prerequisite to the right of the holder to enforce the copyright in federal court.”

Rogers v. BBB Houston, 2011“Before a plaintiff may bring a civil action for copyright infringement, he must register the copyright with the U.S. Copyright Office.”

Copyright: Registration: Published

“Neither the Copyright Act nor its implementing regulations explain the … definition [of ‘published’] to internet works.”
Rogers v. BBB Houston, 2011

Does Internet posting=Published?

YES

Getaped.com v. Cangemi, 2002
Sleep Science v. Lieberman, 2010
Kernal v. Mosley, 2011
Waller v. Nexstar, 2011“[The] act of posting the pictures to [a] website and making them accessible to others for distribution is considered a publication.”

NO:

Einhorn v. Mergatroyd, 2006
McLaren v. Chico’s, 2010
Rogers v. BBB Houston, 2011“[T]he court cannot hold, as a matter of law, that the webpages were published unless public distribution occurred.”

Ownership

  1. General
  2. Derivative Work
  3. Joint Work
  4. Work Made for Hire

Copyright: Ownership: General

Case name, yearFindings
Compaq Computer v. Ergonome, 2004“Copyright ownership is shown by (1) proof of originality and copyrightability and (2) compliance with the applicable statutory requirements.”
Rogers v. BBB Houston, 2011“Ownership of a valid copyright encompasses originality, copyrightability, and compliance with statutory formalities.”

Copyright: Ownership: Derivative Work

Case name, yearFindings
Bucklew v. Hawkins, Ash, Baptie & Co., 2003

“the only ‘originality’ required for [a] new work to be copyrightable … is enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors.”

“Variants that result from tinkering with a copied form are derivative works from that form, and it is a copyright infringement to make or sell a derivative work without a license from the owner of the copyright on the work from which the derivative work is derived.”

Schrock v. Learning Curve Int’l, 2009

Photos of copyrighted toys only need to possess “sufficient incremental original expression to qualify for copyright.”

“As long as he was authorized to make the photos (he was), he owned the copyright in the photos to the extent of their incremental original expression.”

“[T]he original expression [the photographer] contributes lies in the rendition of the subject matter — that is, the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on.”

“The original expression in the [photos] is not particularly great (it was not meant to be), but it is enough under the applicable standard to warrant the limited copyright protection accorded derivative works under §103(b).”

“nothing in the Copyright Act suggests that derivative works are subject to a more exacting originality requirement than other works of authorship.”

“general principles [to copyright derivate works]: (1) the originality requirement for derivative works is not more demanding than the originality requirement for other works; and (2) the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.”

“To be copyrightable, a derivative work must not be infringing. See 17 U.S.C. §103(a);”

“the author of a derivative work must have permission to make the work from the owner of the copyright in the underlying work”

Associated Press v. Shepard Fairey (Obama “Hope” poster), 2011Copyright derivative work, painting a photo

Copyright: Ownership: Joint Work

Case name, yearFindings
Community for Creative Non-Violence v. Reid, 1989“As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed tangible expression entitled to copyright protection.”
Thomson v. Larson, 1998

“Joint authorship entitles the co-authors to equal undivided interests in the whole work — in other words, each joint author has the right to use or to license the work as he or she wishes, subject only to the obligation to account to the other joint owner any profits that are made.”

“[C]ontribution even of significant language to a work does not automatically suffice to confer co-author status on the contributor … a specific finding of mutual intent remains necessary.”

SHL Imaging, Inc. v. Artisan House, 2000“Mere selection of the subject matter to be photographed does not create joint authorship.”
Brod v. General Publishing, 2002

Artistic contributors can be co-owners of copyright.”

Tang v. Putruss, 2007“In order for Defendants to assert the ‘joint authorship’ defense to Plaintiff’s claim for copyright infringement, Defendants must establish: (1) that the parties intended to be joint authors at the time the photo images were taken; and (2) Defendants’ contributions were independently copyrightable.”

Copyright: Ownership: Work Made for Hire

Case name, yearFindings
Community for Creative Non-Violence v. Reid, 1989

Commissioned work is not work made for hire.

“Transforming a commissioned work into a work by an employee on the basis of the hiring party’s right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions.”

“To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor.”

“In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are:

  • the skill required;
  • the source of the instrumentalities and tools
  • the location of the work;
  • the duration of the relationship between the parties
  • whether the hiring party has the right to assign additional projects to the hired party
  • the extent of the hired party’s discretion over when and how long to work
  • the method of payment;
  • the hired party’s role in hiring and paying assistants
  • whether the work is part of the regular business of the hiring party
  • whether the hiring party is in business
  • the provision of employee benefits
  • and the tax treatment of the hired party

… No one of these factors is determinative.”

“Apart from the deadline for completing the [artwork], [the artist] had absolute freedom to decide when and how long to work. [The hirer] paid a sum dependent on ‘completion of a specific job, a method by which independent contractors are often compensated.’ … [The hirer] did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds.”

Morgan v White Rock Distilleries, 2002

Contract

Copyright: Contract, Licensing

Case name, yearFindings
Silva v. MacLaine, 1988

“[The artist] knew in 1981 what [the user] was publishing, what they were doing, and waited until 1987 to bring any action, and I do feel that that constitutes laches.”

“[T]he grant of permission [to copy an artwork] may be given orally or may be implied from conduct, … and whatever its origin, a non-exclusive license is enforceable because of the impracticality of requiring written licenses in all circumstances.”

Community for Creative Non-Violence v. Reid, 1989

Work made for hire. An independent contractor is owns copyright.

“determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor” since sculpture is not one of the nine categories of “specially ordered or commissioned” works in 101 definition. May be a joint work.

New York Times Company v. Tasini, 2001Freelance journalists did not grant electronic republication rights for collective work.
Arizona Cartridge Remanufacturers Association Inc. v. Lexmark International Inc., 2005Opening a shrink-wrapped box signals acceptance of an end-user license agreement.
Silvers v Sony Pictures Entertainment, Inc., 2005“an assignee who holds an accrued claim for copyright infringement, but who has no legal or beneficial interest in the copyright itself, [cannot] institute an action for infringement.”
Jarvis v. K2 Inc., 2007Copyright infringement when using images beyond license term. Result: Photos not registered before infringement=limited damages. Photos in collages are derivative works not compilations.
Chang v. Virgin Mobile, 2009Flickr photo, Creative Commons
Jacobson v. Katzer, 2009Creative Commons
Righthaven LLC v. Democratic Underground LLC, 2011Standing

Originality

  1. General
  2. Idea-Expression
  3. Merger
  4. Scènes à Faire/a>

Copyright: Originality

Facts (idea) cannot get copyright. For how original a photo has to be to get copyright, see substantial similarity.

Case name, yearFindings
Emerson v. Davies, 1845Compilation of facts and the “sweat of the brow” doctrine.
Chamberlin v. Uris Sales Corporation, 1945“Obviously the Constitution does not authorize [a copyright] monopoly grant to one whose product lacks all creative originality … [only to one whose] work contains some substantial, not merely trivial, originality …”
Iowa State Univ. Research Found., 1980“[t]he public interest in the free flow of information is assured by the law’s refusal to recognize a valid copyright in facts.”
Kisch v. Ammirati & Puris Inc., 1987“The copyrightable elements of a photograph have been described as the photographer’s original conception of his subject, not the subject itself.”
Feist Publications v. Rural Telephone Service, 1991

For fact-based works, “sweat of the brow” alone is not sufficient to bestow copyright.

“[T]he principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection.”

“[the selection, coordination, and arrangement of phone numbers in a directory] is not only unoriginal, it is practically inevitable”

“[t]he sine qua non of copyright is originality.”

“[originality] means only that the work was independently created by the author … and that it possesses at least some minimal degree of creativity.”

“the requisite level of creativity is extremely low; even a slight amount will suffice.”

“[o]riginality does not signify novelty; a work may be original even though it closely resembles other works.”

“[originality requires] independent creation plus a modicum of creativity.”

White v. Samsung, 1993“Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”
National Basketball Ass’n v. Motorola, Inc., 1997Sports statistics are facts which do not constitute “original works of authorship” and thus are not subject to copyright law.
Bridgeman Art Library Ltd. v. Corel Corporation, 1999“Slavish copying” is inherently uncreative and cannot confer copyright. To obtain copyright, a work must be a distinguishable variation from the original.

Copyright: Originality: Idea-Expression Divide

See §102(b) of the Copyright Act of 1976

Case name, yearFindings
Baker v. Selden, 1879

Basis of §102(b) of the Copyright Act of 1976.

“The difference between the two things, letters patent and copyright”

Nichols v. Universal Pictures Corp., 1930“[About the idea-expressive divide:] Nobody has ever been able to fix that boundary, and nobody ever can.”
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 1960“The test for infringement of a copyright is of necessity vague.. Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.”
Harper & Row v. Nation Enterprises, 1985

“[C]opyright’s idea/expression dichotomy ‘ strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.’”

“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” The interest served by republication of a public figure’s account of an event is not sufficient to permit nontransformative fair use.

“The Nation’s use had not merely the incidental effect but the intended purpose of supplanting the copyright holder’s commercially valuable right of first publication.”

“[The Effect on the Market] factor is undoubtedly the single most important element of fair use.” The basis of the “verbatim copying of some 300 words of direct quotation”

“[C]opyright’s idea/ expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.’” (quoting the lower court)

“[t]he promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report’ of the [work].”

“[The magazine] went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a ‘news event’ out of its unauthorized first publication of [the] copyrighted expression.”

“[T]the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. … [U]nder ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”

Ho v. Taflove, 2011“these equations and figures are required by the Model … and as such, are not subject to copyright.”
Richard Satava v. Christopher Lowry, 2003“But we must be careful in copyright cases not to cheat the public domain. Only by vigorously policing the line between idea and expression can we ensure both that artists receive due reward for their original creations and that proper latitude is granted other artists to make use of ideas that properly belong to us all.”

Copyright: Originality: Merger Doctrine

Case name, yearFindings
Joshua Ets-Hokin v. Skyy Spirits Inc., 2000

“[Photography can be] inevitable, given the shared concept”

“Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work’s idea and expression ‘merge.’”

Copyright: Originality: Scènes à Faire/h3>

French for “scene to be made” or “scene that must be done”

“a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.”
Wikipedia

“Scenes A Faire Definition: Elements of an original work that are so trite or common that they are not captured by copyright.”
Duhaime.prg Legal Dictionary

Case name, yearFindings
Pagano v. Chas. Beseler Co., 1916

Addressed the copyrightability of a photograph of a scene in front of the New York Public Library at Fifth Avenue and Forty-Second Street.

“The question is not, as defendant suggests, whether the photograph of a public building may properly be copyrighted. Any one may take a photograph of a public building and of the surrounding scene. It undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects. … The photographer caught the men and women in not merely lifelike, but artistic, positions, and this is especially true of the traffic policeman. … There are other features, which need not be discussed in detail, such as the motor cars waiting for the signal to proceed.”

Cain v. Universal Pictures, 1942“it was inevitable that incidents like these and others which are, necessarily, associated with such a situation should force themselves upon the writer in developing the theme.”
Reyher v. Children’s Television Workshop, 1976“Another helpful analytic concept is that of scenes a faire, sequences of events which necessarily follow from a common theme. ‘[S]imilarity of expression … which necessarily results from the fact that the common idea is only capable of expression in more or less stereotyped form will preclude a finding of actionable similarity.’” (quoting Nimmer)
Durham Industries v Tomy Corp., 1980

“where the protected work and the accused work express the same idea, the similarity that inevitably stems solely from the commonality of the subject matter is not proof of unlawful copying”

“similarity in expression is noninfringing to the extent the nature of the creation makes similarity necessary”

Kisch v. Ammirati & Puris Inc., 1987“The copyrightable elements of a photograph have been described as the photographer’s original conception of his subject, not the subject itself.”
Caratzas v. Time Life, Inc., 1992“actionable copying does not occur where a photographer takes a picture of the subject matter depicted in a copyrighted photograph, so long as the second photographer does not copy original aspects of the copyrighted work, such as lighting or placement of the subject.”
Apple Computer, Inc. v. Microsoft Corp., 1994“When the range of protectable expression is narrow, the appropriate standard for illicit copying is virtual identity.”
Reed-Union Corp. v. Turtle Wax, Inc., 1996“[no infringement when the] central elements … are scenes a faire outside the scope of copyright protection.”
Herzog v. Castle Rock, 1999“scenes a faire, ‘sequences of events which necessarily follow from a common theme,’ are not protectible. Incidents, characters, or settings that are indispensable or standard in the treatment of a given topic are not copyrightable.”
Joshua Ets-Hokin v. Skyy Spirits Inc., 2000

Scènes à Faire upheld as an affirmative defense as photography can be “inevitable, given the shared concept”

“Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work’s idea and expression ‘merge.’ Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea; like merger, the rationale is that there should be no monopoly on the underlying unprotectable idea.”

Kaplan v. Stock Market Photo Agency, Inc., 2001

“The subject matter of both photographs is a businessperson contemplating a leap from a tall building onto the city street below. As the photograph’s central idea, rather than Kaplan’s expression of the idea, this subject matter is unprotectable in and of itself.”

“the doctrine of Scènes à Faire/i> holds that sequences of events necessarily resulting from the choice of setting or situation, or ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic,’ are not protectable under the copyright laws.”

Tufenkian Import/Export v. Einstein Moomjy, 2003“The court, confronted with an allegedly infringing work, must analyze the two works closely to figure out in what respects, if any, they are similar, and then determine whether these similarities are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.”
Richard Satava v. Christopher Lowry, 2003

“Nature gives us ideas of animals in their natural surroundings: an eagle with talons extended to snatch a mouse; a grizzly bear clutching a salmon between its teeth; a butterfly emerging from its cocoon; a wolf howling at the full moon; a jellyfish swimming through tropical waters. These ideas, first expressed by nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them. An artist may, however, protect the original expression he or she contributes to these ideas. An artist may vary the pose, attitude, gesture, muscle structure, facial expression, coat, or texture of animal. An artist may vary the background, lighting, or perspective. Such variations, if original, may earn copyright protection.”

“But we must be careful in copyright cases not to cheat the public domain. Only by vigorously policing the line between idea and expression can we ensure both that artists receive due reward for their original creations and that proper latitude is granted other artists to make use of ideas that properly belong to us all.”

Mannion v. Coors Brewing Co., 2005

“Unless a photograph replicates another work with total or near-total fidelity, it will be at least somewhat original in the rendition.”

“It of course is correct that the photographer of a building or tree or other pre-existing object has no right to prevent others from photographing the same thing. That is because originality depends upon independent creation, and the photographer did not create that object.”

“Protection derives from the features of the work itself, not the effort that goes into it.”

“A photograph may be original in three respects. … Rendition … Timing … Creation of the Subject.”

“to the extent a photograph is original …, copyright protects not what is depicted, but rather how it is depicted.”

“Unless a photograph replicates another work with total or near-total fidelity, it will be at least somewhat original in the rendition.”

“[a photographer’s] copyright does not extend to the natural world he captured.”

“the copyright in [a nature photo] does not protect against subsequent photographs of [the same subject] in the same location.”

“copyright protects the image but does not prevent others from photographing the same object or scene.”

“the timing of the capture of the scene in front of the New York Public Library and its rendition were original, but the copyright in the Pagano photograph does not protect against future attempts to capture a scene in front of the same building.”

“In the context of photography, the idea/expression distinction is not useful or relevant.”

Similarity

Copyright: Substantial Similarity

Case name, yearFindings
Gross v. Seligman, 1914The copyright in a photograph was infringed when the same artist created a similar photograph using “the same model in the identical pose, with the single exception that the young woman now wears a smile and holds a cherry stem between her teeth.”
Alfred Bell & Co. v. Catalda Fine Arts, Inc., 1951“no large measure of novelty is necessary [to make a new copyrightable work]” The term original should be read to mean “owes its origin [to an author, not that the work is] startling, novel or unusual, or a marked departure from the past.”
Roth Greeting Cards v. United Card Co., 1970Introduced the “total concept and feel” standard for determining substantial similarity. Also showed evidence of access to the original work.
Sid & Marty Krofft Television Productions Inc. v. McDonald’s Corp., 1977Refined the “total concept and feel” standard by establishing a two-stage comparison of extrinsic test, and an intrinsic test by an “ordinary reasonable person.”
Durham Industries v Tomy Corp., 1980

“where the protected work and the accused work express the same idea, the similarity that inevitably stems solely from the commonality of the subject matter is not proof of unlawful copying”

“similarity in expression is noninfringing to the extent the nature of the creation makes similarity necessary”

Gracen v. Bradford Exchange, 1983“Suppose Artist A produces a reproduction of the Mona Lisa, a painting in the public domain, which differs slightly from the original. B also makes a reproduction of the Mona Lisa. A, who has copyrighted his derivative work, sues B for infringement. B’s defense is that he was copying the original, not A’s reproduction. But if the difference between the original and A’s reproduction is slight, the difference between A’s and B’s reproductions will also be slight, so that if B had access to A’s reproductions the trier of fact will be hard-pressed to decide whether B was copying A or copying the Mona Lisa itself.”
Tufenkian Import/Export v. Einstein Moomjy, 2003“The court, confronted with an allegedly infringing work, must analyze the two works closely to figure out in what respects, if any, they are similar, and then determine whether these similarities are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.”

Fair Use

  1. General
  2. News
  3. Parody
  4. Paraphrasing
  5. Potential Market

Copyright: Fair Use

Case name, yearFindings
Folsom v. Marsh, 1841

The start of fair use in America.

“It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto.”

“In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”

“[N]o one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”

“What constitutes [Fair use] … is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion.”

“[T]he metaphysics of [fair use], where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”

Dellar v. Samuel Goldwyn, 1939“The issue of fair use [is] the most troublesome in the whole law of copyright.”
Wihtol v. Crow, 1962

Fair use and intent.

“[I]t is not conceivable to us that the copying of all, or substantially all, of a copyrighted [work] can be held to be a ‘fair use’ merely because the infringer had no intent to infringe.”

Rosemont Enterprises, Inc. v. Random House, Inc., 1967“[Fair use is the] privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner …”
Time Incorporated v. Bernard Geis Associates, 1968“[Fair use] is so flexible as virtually to defy definition.”
Meeropol v. Nizer, 1977“The line which must be drawn between fair use and copyright infringement depends on an examination of the facts in each case. It cannot be determined by resort to any arbitrary rules or fixed criteria.”
Iowa State v. ABC, 1980

“The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.”

“The doctrine of fair use, originally created and articulated in case law, permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”

DC Comics, Inc. v. Reel Fantasy, Inc., 1982“The fair use defense turns not on hard and fast rules but rather on ‘an examination of the facts in each case.’”
Maxtone-Graham v. Burtchaell, 1986

Fair use even if request for permission is denied.

“the fair use determination often requires a complex and subtle evaluation of numerous mixed issues of fact and law.”

“The commercial nature of a use is a matter of degree, not an absolute”

“[The] decision to publish despite [plaintiff’s] denial of permission does not deserve [the] characterization [of bad faith].”

“borrowing 4.3 percent of the [work] was not unfair.”

Bill Graham Archives v. Dorling Kindersley, 2006Small copied photos in a book can be fair use.

Copyright: Fair Use: News

Case name, yearFindings
Nunez v. Caribbean Int’l News Corp., 2000

A beauty pageant winner modeling portfolio was used in a news story.

“Unauthorized reproduction of professional photographs by newspapers will generally violate the Copyright Act of 1976; in this context, however, where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. §107.”

Fitzgerald v. CBS Broadcasting, Inc., 2007A freelancer’s photo of a mobster being arrested in a TV news report was not a protected fair use under copyright law as the use did not add any new creative or editorial message.
Murphy v. Millennium Radio, 2011“However, news reporting does not enjoy a blanket exemption from copyright. News organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.”
Monge v. Maya Magazines, 2012
TVNotas

A celebrity couple’s six private wedding photos were stolen. Publishing all six photos to expose their marriage was ruled unnecessary for news reporting and thus not fair use.

“[O]ne [photo] … would certainly have sufficed … [defendant] used far more than was necessary to corroborate its story … ”

“[N]ewsworthiness, by itself, is insufficient to demonstrate fair use.”

“Although news reporting is an example of fair use, it is not sufficient itself to sustain a per se finding of fair use.”

“The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors.”

“Fair use is a central component of American copyright law.”

“[F]air use has bounds even in news reporting, and no per se ‘public interest’ exception exists.”

“[A news magazine] cannot simply take fair use refuge under the umbrella of news reporting.”

“[P]ublication of photographic evidence that constitutes proof of a newsworthy event is not automatically fair use …”

“The photos were not even necessary to prove [the] controverted fact … a public record may have sufficed to inform the public …”

“[The determination of fair use] is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment.”

“Waving the news reporting flag is not a get out of jail free card in the copyright arena.”

Learn more with TVNotas.

Copyright: Fair Use: Parody

Case name, yearFindings
Rogers v. Koons, 1992

Direct copying was not necessary for parody so not fair use.

“[was the original] copied in good faith to benefit the public or primarily for the commercial interests of the infringer.”

“Knowing exploitation of a copyrighted work for personal gain militates against a finding of fair use.”

“Parody or satire, as we understand it, is when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new art work that makes ridiculous the style and expression of the original.”

“By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist.”

“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”

Campbell v. Acuff-Rose Music, Inc., 1994A commercial parody can be fair use.
Campbell v. Acuff-Rose, 1994

A commercial parody can be fair use.

“[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

Suntrust v. Houghton Mifflin, 2001Parody and fair use.

Copyright: Fair Use: Paraphrasing

Case name, yearFindings
MacMillan Co. v. King, 1914Paraphrasing and partial copying can be infringement.
Nutt v. National Institute Inc., 1929

“The infringement need not be a complete or exact copy. Paraphrasing or copying with evasion is an infringement …”

“the test is whether the one charged with the infringement has made an independent production, or made a substantial and unfair use of the complainant’s work.”

“[protected expression includes] association, presentation, and combination of the ideas and thought which go to make up the [author’s] literary composition.”

Wainwright Securities v. Wall Street Transcript Corp, 1977“What is protected is the manner of expression, the author’s analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words and the emphasis he gives to particular developments”
Wright v. Warner Books, 1991Paraphrasing OK for “straightforward and factual reportage [of the] most basic and banal factual matter.”

Copyright: Fair Use: Potential Market (Economic / Commercial Value)

Case name, yearFindings
Cable/Home Commc’n Corp. v. Network Prods., 1990“Under section 107, ‘potential market’ means either an immediate or a delayed market, and includes harm to derivative works.”
Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., 1998“It would … not serve the ends of the Copyright Act — i.e., to advance the arts — if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original.”
Worldwide Church of God v. Philadelphia Church of God, 2000“[E]ven an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the ‘potential market’ and, second, because he has the right to change his mind.”
Columbia Pictures TV, Inc. v. Krypton Broad. of Birmingham, 2001“[Each photo] can live [its] own copyright life [and] has an independent economic value and is, in itself, viable.”

Permission

  1. Architecture & Statues
  2. Photocopying

Copyright: Permission: Architecture & Statues

Also see scenes a faire.

Case name, yearFindings
The Yankee Candle Co. v. New England Candle Co., 1998Internal structure does not qualify as “building” under 17 U.S.C. § 101.
Rock & Roll Hall of Fame & Museum v. Gentile Prods., 1998

“Moreover, we think Gentile’s use of these words may very well constitute a fair use of the Museum’s registered service mark, pursuant to 15 U.S.C. Section(s) 1115(b)(4). Section 1115(b)(4) permits a party to defend an infringement charge on the ground: [t]hat the use of the … term, or device charged to be an infringement is a use, otherwise than as a mark … of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party.”

“[T]the answer will essentially turn on whether consumers view the words, “ROCK N’ ROLL HALL OF FAME,” as a label for Gentile’s photograph, or as an indicator that Gentile’s photograph originated with or was sponsored by the Museum. As always, the touchstone will be the likelihood of consumer confusion.”

Learn more with Rock n’ Roll Hall of Fame

Gaylord v. US, 2012About the Korean War Memorial statue, brought against the U.S. Postal Service.

Copyright: Permission: Photocopying

Case name, yearFindings
Williams & Wilkins Co. v. United States, 1973Libraries can photocopy articles for patrons doing scientific research under fair use.
Marcus v. Rowley, 1983

“[A] finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used is strong indicia of no fair use.”

“a finding of a nonprofit educational purpose does not automatically compel a finding of fair use.” Copying for education fair use “a substantial copy of plaintiff’s booklet with no credit given to plaintiff. Under these circumstances, neither the fact that the defendant used the plaintiff’s booklet for nonprofit educational purposes nor the fact that plaintiff suffered no pecuniary damage as a result of Rowley’s copying supports a finding of fair use.”

Basic Books, Inc. v. Kinko’s Graphics Corporation, 1991Copying articles for a profit, even when the end use is educational, is not fair use.
Princeton University Press v. Michigan Document Services, Inc., 1996Photocopying. Commercial copying is not fair use.

Public Domain (No Copyright)

Case name, yearFindings
Alfred Bell & Co. v. Catalda Fine Arts, Inc., 1951

Originality. You can copyright an artistic interpretation of a public domain work.

“no large measure of novelty is necessary [to make a new copyrightable work]” The term original should be read to mean “owes its origin [to an author, not that the work is] ”startling, novel or unusual, or a marked departure from the past.”

White v. Samsung, 1993“Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”
Bridgeman Art Library Ltd. v. Corel Corporation, 1999“Slavish copying” is inherently uncreative and cannot confer copyright. To obtain copyright, a work must be a distinguishable variation from the original.
TrafFix Devices, Inc. v. Marketing Displays, Inc., 2001“In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying.”
Dastar Corp. v. Twentieth Century Fox Film Corp., 2003

Trademark cannot preserve rights to a public domain work.

“The right to copy, and to copy without attribution, once a copyright has expired, … passes to the public.”

“once the patent or copyright has expired, the public may use the invention or work at will and without attribution.”

“the phrase [‘origin of goods’ in the Lanham Act] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.”

Bucklew v. Hawkins, Ash, Baptie & Co., 2003

“the only ‘originality’ required for [a] new work to be copyrightable … is enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors.”

“Variants that result from tinkering with a copied form are derivative works from that form, and it is a copyright infringement to make or sell a derivative work without a license from the owner of the copyright on the work from which the derivative work is derived.”

Golan v. Gonzales, 2005Congress may not retroactively restore copyright in works that have fallen into the public domain.
Warner Bros Entertainment Inc v X One X Productions, 2011“freedom to make new works based on public domain materials ends where the resulting derivative work comes into conflict with a valid copyright”

ISPs

Copyright: DMCA & ISPs (Internet Service Providers)

Case name, yearFindings
Sony Corp. of America v. Universal City Studios, Inc., 1984 (the “Betamax case”)

Contributory infringement. Products that can be used for illegal copying are legal if there are substantial non-infringing uses.

“the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses …”

“[E]ven the unauthorized home time-shifting of respondents’ programs is legitimate fair use…. …”

“The mere absence of measurable pecuniary damage does not require a finding of fair use.”

“[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.”

“[to negate fair use one need only show that if the challenged use] should become widespread, it would adversely affect the potential market for the copyrighted work.”

Religious Technology Center v. Netcom, 1995“mere possession of a copy on a server that is accessible to some members of the public” is not infringement of the right to publicly distribute and display, but the ISP was liable for contributory infringement.
Kelly v. Arriba Soft Corporation, 2002Thumbnails and inline linking can be fair use.
CoStar v. LoopNet, 2004Internet service provider is not liable for copyright infringement of photographs uploaded by subscribers.
Perfect 10 v. Google Inc., 2006Thumbnails in Web searches were fair use. Framed inline images of full size were not infringing copies.
Field v. Google, Inc., 2006A search engine can index and cache a website as fair use. Webmaster can opt-out using a HTML meta tag or a robots.txt file.
Perfect 10 v. CCBill LLC, 2007DMCA notification procedures place the burden of policing copyright infringement on the owners of the copyright.
Photo Resource Hawaii, Inc. v. American Hawaii Travel, Inc., 2007default judgment against a web site operator who posted plaintiff’s photographs without permission. statutory damages in the amount of $18,000 for infringement of eight photographs, which was equal to three times the plaintiff’s licensing fee, and the plaintiff’s request for statutory damages in the amount of $30,000 for violating the copyright protection provisions (§ 1203(c)) of the Millennium Copyright Act.
Photo Resource Hawaii, Inc. v. American Hawaii Travel, Inc., 2007CMI removal $18,000.00 in statutory damages under the Copyright Act and $30,000.00 in statutory damages under the Millennium Copyright Act.
Gregerson v. Vilana Fin., Inc., 2008CMI removal. $5,000 for willful removal of thely embedded watermark.
Lenz v. Universal Music Corp., 2008

Sender of DMCA takedown notice must consider fair use.

“[T]he fact remains that fair use is a lawful use of a copyright.”

Viacom v. YouTube, 2010DMCA safe-harbor provision protects YouTube from secondary copyright claims.
Murphy v. Millennium Radio Group LLC, 2011DMCA CMI and copyright infringement. online posting of a photocopy of a magazine photograph

Infringement

  1. General
  2. Summary Judgment

Copyright: Infringement

Case name, yearFindings
Armour v. Knowles, 2007“To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright; (2) factual copying; and (3) substantial similarity.”
Rogers v. BBB Houston, 2011“In order to succeed on a copyright infringement action, a plaintiff must prove ownership of a valid copyright, actionable copying, and substantial similarity.”

Copyright: Infringement: Summary Judgment

Case name, yearFindings
Wickham v. Knoxville, 1984“A Court may compare the two works and render a judgment for the Defendant on the ground that as a matter of law, a trier of fact would not be permitted to find substantial similarity.”
Kendall v. Hoover Co., 1984“A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have effect of establishing or refuting one of essential elements of a cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties.”
Copeland v. Machulis, 1995“Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Rogers v. BBB Houston, 2011

“Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law.”

“A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit.”

Not Copyright

First Amendment & Photography

When is photography protected as “free speech”?

See First Amendment case law.

Privacy

See privacy case law.

Property: Trespassing for photography

See property case law.

Recent cases: copyright fair use

Add
Kernal Records Oy v. Mosley, 2011 WL 2223422 (S.D. Fla. June 7, 2011): online posting is a publication

Next page: Rock and Roll Hall of Fame v. Gentile Prods.

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