Answer: YES, FAIR USE!

Answer: YES, FAIR USE!

Ha! This was an easy one, wasn’t it? Read the opinion here. (If you got here without reading the problem first, click here and ignore the giant letters above.) It’s obviously not fair use. I mean, it’s not very transformative, the photograph is pretty creative, defendant took about half of it, and you certainly can’t say it has no affect on the potential market or value—

Wait. What did you say? The court found found the use was fair? C’mon. Let me check.

Wait, What?!

Well, blow me down. The court really did find fair use and dismiss the case on summary judgment. I wonder how it arrived at this surprising decision?

• Factor 1A: Transformative Use. The court found that defendant’s use was transformative. Whereas the plaintiff’s purpose was “promotional and expressive” (i.e., creative or artistic), defendant’s purpose was “informational,” I guess because it just showed a pretty image of a neighborhood attendees could visit.
• Factor 1B: Commercial Use. The court found the use was non-commercial “because the photo was not used to advertise a product or generate revenue.”
• Factor 1C: Bad Faith. The court found that the defendant acted in “good faith,” and that good faith works in favor of fair use. “The record indicates that … [the defendant’s] owner found the photo online and saw no indication that it was copyrighted. [The owner] attests that he thus believed the photo was publicly available.” Also in favor of “good faith” is defendant’s prompt removal of the photograph as soon as it “learned that the photo may potentially¹Potentially? be copyrighted.”
• Factor 2A: Expressiveness. The court found the photograph was only a little bit creative but mostly factual. The court could tell that it was factual because defendant’s use was for the photograph’s “factual content.”
• Factor 2B: Status of publication. The court found that “the scope of fair use is broadened when a copyrighted work has been previously published.”
• Factor 3: Amount and substantiality of the taking. The court found this factor favored fair use because defendant only took half the photograph, which was “no more of the photo than was necessary to convey the photo’s factual content and effectuate [the defendant’s] informational purpose.
• Factor 4: Effect on potential market and value. The court found this factor favored fair use because defendant’s use didn’t actually prevent plaintiff from monetizing the photograph. The fact that he managed to make two sales after the infringement occurred was proof that there was no actual market harm. Further, since defendant didn’t try to make money directly from the photograph, it didn’t “usurp the market by providing a market substitute for the photo.”

I Award You No Points, and May God Have Mercy on Your Soul.

Every single thing about the court’s reasoning is wrong. Every. Single. Thing.

• No, it’s not transformative. The plaintiff took a photograph of a street in the neighborhood, at night, using time-lapse to turn cars’ lights into streaks along the street. As the court explained, the purpose as aesthetic: it looks nice. At the same time, it is recognizably the neighborhood and does a good job capturing a kind of essence of the neighborhood. And that’s exactly how the defendant used the photograph. The defendant didn’t use the photograph “informationally.” To do that, it could have just written “ADAMS MORGAN.” It was not necessary for defendant to show any depiction of neighborhood to tell attendees about the neighborhood, and the photograph doesn’t add any further “information.” What the photograph adds is a visually arresting depiction of the neighborhood, which is exactly what the photographer intended.
• No, it’s not non-commercial. Is the film festival free? Does the defendant want attendees to come its film festival? Why else does it have a website? What is the point of telling attendees about the neighborhood, except to encourage them to come? The photograph is there to drive traffic. It’s not directly commercial, and I’d accept a finding of neutrality on this sub-factor, but it is not non-commercial such that the sub-factor favors fair use.
• No, “I found it on the internet” isn’t an excuse. Good faith is never relevant. I can’t even imagine what would be relevant form of good faith.²Most discussions of “good faith” in the context of fair use are really about the absence of bad faith or motive, which isn’t the same thing. Maybe if lives hung in the balance, somehow? But let’s put that aside. Do we really want it to be an excuse that the infringer didn’t know that the underlying work was “copyrighted.” All works are “copyrighted.” There is no excuse.³There is such a thing as “innocent infringement,” which would cover this sort of ignorance, but that goes to damages.
• No, photographs can be expressive. The court adopts the all-to-common knock against photography: it isn’t creative because it just captures things as they are. But if even a portrait that captures the sitter accurately requires dozens of creative decisions, how much more creative must the photograph here be? Consider the decision to take the photograph at night, to take it as time-lapse, how long to set the shutter to capture just the right amount of streaking, how high up to set the camera, at what angle the street should be situated, where to situate the street relative to the frame, how much dark sky is enough to frame off the top, and so on. And I’m not even a photographer.
• No, publishing a photograph doesn’t weaken its protections. It is true that unpublished works have broader protection against fair use, an echo from the old right of first publication. But publication doesn’t weaken copyright protection: that would be an absurd result.⁴Indeed, much of the Copyright Act seeks to encourage publication.
• No, taking the center-most half of the photograph is still taking a lot. If I took half of your novel, you’d agree that was too much, right? If I took the crucial central chapter of your novel, you’d protest, right? Well, here, the defendant took half the photograph, and the central portion of the photograph, the most colorful and vibrant part.
• No, an artist’s failure to sell enough doesn’t weaken his copyright. The photograph wasn’t a huge success for the plaintiff. And defendant’s use of the photograph didn’t divert any sales. But all that proves is that the defendant’s use didn’t have an effect on any actual markets. But it says nothing about potential markets. And one potential market is for film festivals that want a pleasing way of showing a neighborhood as a way of punching up their websites and encouraging attendance. Professional photographers take pictures in hopes that someone will want to license them.

Terrible Decision Is the Son of Bad Decision; or What to Do with Pesky Copyright Cases

Standing behind this terrible decision is another bad (but I won’t say terrible) decision, involving professional photographs of Kenny Chesney and Kid Rock, which I blogged about earlier in the last edition of “Is it Fair Use?”. In that case, a professional photographer took pictures of Kenny Chesney and Kid Rock performing and made them available for free under a Creative Commons License. When he discovered a non-profit with a political point of view he found distasteful, he sued, guessing (correctly) that the non-profit hadn’t complied with the Creative Commons License. The non-profit argued that its use was fair. It was only using the photographs to identify (alleged) supporters of its political viewpoint, it received hardly any charitable contributions that could even remotely be connected the use, photographs aren’t expressive, and the photographer didn’t charge for the photographs. The court accepted those arguments. As I mentioned in the previously blog, it was a bad decision for a number of reasons.

Thus, a bad decision begets a terrible one, especially its cavalier dismissal of photography as an art-form and its assumption that using Creative Commons Licenses deprived works of value.

As with the Philpot case, I suspect what’s going on here is that judges have little patience for penny-ante copyright cases. Sure, photographers have their copyrights; and sure, copyright cases can (and, indeed, can only) be brought in federal court; and sure, with timely registration the photographer is always entitled to some damages. But $750 copyright cases just clog dockets and distract from cases that need attention. The problem is the method the judges use to get rid of these pesky cases: making bad fair-use law. In this case, that bad law is:

• If I found it on the internet, and I’m pretty ignorant about things, it’s OK for me to use.
• Photography isn’t really very expressive.
• If you don’t make money from it, it must not have had a market and/or it’s not very valuable (so sorry if you’re small and your marketing budget isn’t enormous).

Perhaps this is where a “small claims” copyright court could be helpful. It would get cases like this out of federal court without (1) pretending photographers (and other creators) have no rights, and (2) making terrible law.

IMPORTANT UPDATE: The Fourth Circuit reversed this decision.

Thanks for reading!

Rick Sanders

Rick is currently General Counsel for Software Freedom Conservancy. Previously, he has been practicing law as an intellectual-property litigator since 2000.