These days, authors, artists, and photographers are likely to find one or more of their creative works used without permission. One defense to the purported infringement is often that it is a “fair use.” The challenge then is determining whether the unauthorized use is an infringement or fair use. While only a court of law can make that decision, understanding what makes a use “fair” will help you protect your work.
Surprisingly, the purpose of copyright law is not to protect the work of creatives, but, as stated in Article I, section 8, clause 8, of the United States Constitution, it is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright law attempts to achieve a balance between public interest and the rights of authors/artists so that artists will be encouraged to create and the public will be the ultimate beneficiary. In many ways, the priority leans towards public concerns when there is any conflict in those interests. As a result, the law may not seem fair or just to the copyright owner.
Rights of Copyright Owners
A copyright is created at the moment a work is made into a fixed form. For authors, it is created when you type the words on your computer. For photographers, it is created at the click of the shutter. For artists, it is created when the paint is applied to the canvas. Copyright law protects both unpublished and published works, regardless of whether they have been registered with the U.S. Copyright Office.
Copyrights give the owner the exclusive right to do, or to authorize others to do, specific things with their works. Copyright law effectively gives you, as the copyright owner, a legal monopoly on the use of that image. It also gives the copyright owner the right to prevent someone else from destroying their work.
When you own a copyright, you have the sole right (also known as the “exclusive rights”) to:
- reproduce the copyrighted work;
- display the copyrighted work publicly;
- prepare derivative works based on the copyrighted work; and
- distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.
17 USC Section 106.
Rights of Society
Enter fair use. Fair use is the right to use copyrighted materials without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.
Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too. Specifically, Section 107 of the Copyright Act states that:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 USC Section 107.
All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.
The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.
A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.
An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.
When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.
Apparent Inconsistencies in Fair Use Cases
Because of the subjective nature of the fair use factors, many court holdings on fair use appear to be inconsistent. For example, in July 2007, a federal court in Massachusetts determined that CBS news’ use of Christopher Fitzgerald’s photograph of Stephen Flemmi being arrested was not fair use. A summary and analysis of the case written by Fitzgerald’s attorneys can be reviewed on the NPPA website . However, some courts have found fair use when a photograph has been used by news organizations. See my October 25, 2006, blog  on Chris Harris’ case for an example. However, it’s clear that the unauthorized use of a photograph is much more likely to be deemed a fair use when the photograph itself is newsworthy.
A review of significant fair use cases can be found on Stanford’s Fair Use Website . A review shows that it is sometimes difficult to predict how a court will rule on a fair use case. While this can partially be attributed to the specific fact situations presented, it does appear that the current application of the law on fair use is unstable and unpredictable.
The DMCA and Fair Use
Last week, a judge ordered in the Lenz v. Universal Music  case that copyright owners must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a DMCA takedown notice .
Although Universal Music argued in the Lenz case that fair use is difficult to determine, the court found that to not be an excuse.
Clearly, the DMCA statute requires that a takedown notice include:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
17 U.S.C. Section 512(c)(3)(A) (emphasis added). The Lenz court focused on the 5th requirement for its finding at issue here.
So what is a photographer to do when fair use is a tough call even for lawyers? As long as you have a good faith belief that the infringement is not fair use, you should be protected in your demand that infringing materials be removed from a Web site.
It is always a judgment call until a court gives a final ruling whether the use of a photograph is fair. But if you find your work has been used without your permission and the defense is “fair use,” don’t be too quick to accept that answer.
[tags]fair use, copyright, photography law[/tags]