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.

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Steve Vondran

Steve Vondran is an intellectual property lawyer with offices in San Francisco, Newport Beach, San Diego and Santa Monica California and is the Founder and CEO of the Copyright Policy Institute (“CPi”).  He is a software and copyright infringement lawyer with a thriving…

Steve Vondran is an intellectual property lawyer with offices in San Francisco, Newport Beach, San Diego and Santa Monica California and is the Founder and CEO of the Copyright Policy Institute (“CPi”).  He is a software and copyright infringement lawyer with a thriving legal practice handling copyright infringement dealing with jewelry, films, videos, photographs, software, and other copyrighted content.