Photo Repo addresses copyright law as it pertains to photographs and photographers, and everything in this chapter is based on Title 17 of the United States Code, actual court cases involving copyright issues, and law reviews and journals written by Intellectual Property (IP) attorneys. Topics include:
- Benefits of Copyright Registration
- Published vs. Unpublished Photographs
- Effective Registration Dates
- Statutory and Actual Damages
- Innocent, Ordinary, and Willful Copyright Infringement
- Removal of Copyright Management Information
- Attorney Fees and Court Costs
- Fair Use
- Hotlinking (aka Inline Linking, aka Embedding)
- Sovereign Immunity for States and Indian Nations
- Section 512: Limitations to Liability Relating to Material Online
CHAPTER EXCERPT | ON FAIR USE…
The Fair Use statute (§107, Limitations on exclusive rights: Fair Use) begins by listing possible examples of 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.
Unfortunately, those who do not understand the law (e. g. most copyright infringers) think that if their use of a photograph falls into one of these categories that it qualifies for Fair Use, and once they get this into their heads it’s hard to convince them otherwise. If the infringer has money, just turn the case over to an attorney and let him learn about Fair Use the hard way. If the infringer is some loser who is blogging in his parent’s basement, just be happy he removed your photo—most do—because that’s probably the end of it.
The core of §107 is the second sentence and the subsequent list of “factors.”
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
Simply using a photo without permission for news reporting, commenting, criticism, teaching, scholarship, or research does not automatically qualify the use as being fair. Courts, including the Supreme Court, have made it clear that the examples mentioned in the first sentence of §107 are just that, examples, and that Fair Use can only be determined on a case-by-case basis using the four factors outlined in the statue. Therefore, the only way to really know if the unauthorized use of copyrighted materials is fair is to take the case to court.
Justice Souter writes that “the 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,” and “Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of §107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities ‘are generally conducted for profit in this country.’”
CHAPTER EXCERPT | ON ATTORNEY FEES AND COURT COSTS…
For most people, filing and trying a federal lawsuit is beyond their capabilities, so they will require the help of an attorney. However, with damage awards for a typical Internet-based photograph copyright lawsuit being small, an attorney will only take such cases if his fee is either paid by the client or, if victorious, by the defendant. Enter §505:
“In any civil action under this title [Title 17 USC], the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”
Note that the statue reads “the court in its discretion may allow…” and “to the prevailing party…” This means that no one is guaranteed of being awarded attorney fees and court costs (filing and service fees), so even if you win your lawsuit you may still have to pay your own legal fees. And if you lose, you may have to pay the defendant’s legal fees as well. From the few court cases I have read, if the defendant is wasting everyone’s time and has forced a lawsuit without having a defense just because he refuses pay any reasonable settlement fee, the judge will throw the book at him. On the other hand, if he has a viable defense and still loses, the judge may decide each party is responsible for its own legal fees.
While it is doubtful that any of your copyright cases will ever end up in court, this doesn’t mean that you can’t hint at the threat of a lawsuit in your demand letter. Making an infringer well aware that he may end up paying your attorney fees plus court costs is another important way of convincing him to pay your settlement fee.
CHAPTER EXCERPT | ON INNOCENT INFRINGEMENTS…
At this point you may be wondering how someone can break federal copyright law and still be “innocent.” Well, innocent doesn’t mean, “Gee, I didn’t even know there was such a thing as copyright law.” An innocent infringement is more along the lines of unwittingly buying a stolen car from your angelic grandmother who never did a dishonest thing in her life…until just now.
Per §504(c)(2), the statutory damage minimum can be lowered from $750 to as low as $200 if the infringer a) was unaware that his actions constituted infringement of the copyright, and b) had no reason to believe that his actions constituted infringement of the copyright. The infringer is still guilty of violating copyright law, but he pays less in damages. Considering potential legal fees, the fine may be the least of his worries.
To qualify for the reduced fine, it is up to the infringer to prove he had no idea, and no reason to believe, that he was breaking copyright law. Perhaps he got your photo from a website that claimed all photos on the site were in the public domain. Perhaps the person from whom he licensed the photo was fraudulently posing as the copyright owner. Regardless of the reason, he does not have to prove his case “beyond a shadow of a doubt” because copyright law is civil law, not criminal law. A “preponderance of the evidence” determines the outcome in a civil case, and that means the side with the most believable story wins.