Here are some recent cases that have come down dealing with Copyright Law.

  1. Virginia Fair Use Case:  (reversing a decision finding fair use in a photo copyright case involving a picture of Washington D.C.).  The Court noted:

“The fair use affirmative defense exists to advance copyright’s purpose of “promot[ing] the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8 ; see also Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

The defense does so by allowing “others to build freely upon the ideas and information conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 350, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

But fair use “is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors.” Kienitz v. Sconnie Nation LLC , 766 F.3d 756, 759 (7th Cir. 2014).”

The “ultimate test” of fair use is whether the progress of human thought “would be better served by allowing the use than by preventing it.” Cariou v. Prince , 714 F.3d 694, 705 (2d Cir. 2013) ” Brammer v. Violent Hues Prods., 922 F.3d 255, 262 (4th Cir. 2019).

Our law firm has handled many cases of photo infringement involving fair use.  While it is important to protect the intellectual property of artists including their photos, illustrations, art, music, software, film and video, many times an infringement letter is sent without first considering statutory fair use rights.

Indeed, fair use is a “defense” to copyright but it is also a LEGAL RIGHT built specifically into the United States Copyright law.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The case has a really good analysis of all factors, and we plan to post a video discussing the factors in greater detail.

CASE ACT – Does it make sense?

Congress considers copyright small claims court.

A new bill considers creating a small claims court where filmmakers, photographers, jewelry companies, software designers and other copyright holders can bring their small claims cases.  Will it pass?  Right now (as of January 2020), it appears to be held up by one vote.  CPi believes there is no need for a copyright court in Washington D.C. based out of the Copyright Office and with damages that can reach up to $30,000 for willful copyright infringement.  While artists do deserve to be compensated for their works, and infringement does need to be deterred, the CASE ACT will likely lead to “floodgate litigation” and will result in many people being sued by artists without much considering of fair use rights.

Moreover, musicians, artists, photographers, videographers, writers, and illustrators ALREADY HAVE LEGAL RECOURSE for infringement of their Works.  They can already sue in federal court in their jurisdictions assuming they have REGISTERED THEIR CREATIVE WORKS.  So, there is no need to create a whole new Court in D.C. where thousands of lawsuits can be filed.  For registered Works, there are already many copyright lawyers ready to handle your case on a “contingency fee basis” (as the United States Copyright laws allow for the recovery of attorney fees for the Plaintiff if successful).  So, the argument “we deserve to get paid” is not a legitimate argument as they already have access to federal courts and attorneys are already incentivized to take these cases.

Another reason is that Defendants have the legal right to “opt-out” of the Washington D.C. based copyright small claims case.  They do not have to consent to jurisdiction and one reason they may not is that there is no apparent right to appeal or have the case reviewed if the panel makes a bad decision.   Some have argued that only unsophisticated persons would consent to jurisdiction (not knowing any better), and many individuals accused of infringement may not have the resources to put up a legal battle, and thus, the copyright court could turn into a “default judgment mill.”  This argument has merit.

This would also create new expenses for taxpayers in building out the process that does not need to be created because federal courts already exists and are well equipped to deal with copyright infringement claims.

Many organizations oppose or have concerns over the proposed CASE Act including:

American Library Association

Association of Research Libraries

Association of College and Research Libraries

Public Knowledge

We will keep an eye and see if they can get the final vote needed to pass the Copyright Alternative in Small-Claims Enforcement Act (CASE Act).