A court ruling from 2018 on a copyright complaint brought attention to a little known loophole in copyright protections. The court ruled that the alleged infringer was not guilty because, among several reasons, the way they used the content was different from the original content was used.
Four Factors to Determine Fair Use
The court used a test of whether the reproduction of the photo was fair use. The court document cited the following four factors to determine whether the use of the photo fell under the protections of fair use:
(1) the purpose and character of the use, including whether such use is of a commerical nature…
(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;
(4) the effect of the use upon the potential market for or value of the copyrighted work.
On the first point, the court examined whether the new image created from the original image was “transformative” in nature. Ordinarily this means how much the image was changed.
What may come as a surprise to most people, there is a precedent dating to 2009 that holds that a work “can be transformative in function or purpose without altering or actually adding to the original work.”
What the court did was to first examine what the function and purpose was of the original was. In this case the purpose of the original was found to be “promotional and expressive.”
The court then determined that the purpose of the copied image was informational, which meant that it was transformative.
It is commonly understood that one of the ways to determine fair use is the purpose of the copied content, such as for use in a work of criticism.
Transformative Use
But there is a little known concept called “transformative” that can also be considered. Transformative in this case related to how the image was used in a non-commercial manner versus the commercial manner of the original.
That was enough, in this case, for the defendant to get away with using someone else’s content.
Wikipedia’s page on Fair Use states this:
“It is arguable, given the dominance of a rhetoric of the “transformative” in recent fair use determinations, that the first factor and transformativeness in general have become the most important parts of fair use.”
To make it clearer, this is the heart of the above statement:
“It is arguable… that the first factor and transformativeness in general have become the most important parts of fair use.”
This concept of the “transformative” nature of the use of copyrighted content is little known in the search and content marketing industry.
Here is how the court found that the defendant’s use of the original content was transformative:
“While Brammer’s purpose… was promotional and expressive, Violent Hues’ purpose… was informational: to provide festival attendees with information regarding the local area. Furthermore, this use was non-commercial, because the photo was not used to advertise a product or generate revenue.”
The court highlighted the non-commercial aspect of the defendant’s use to show how it differed from the original commercial and promotional use of the original.
The purpose of the original work was not informational, but the purpose of the copied content was informational. The court apparently found this to be evidence that the work was transformative.
Other Reasons Why Infringement Claims Dismissed
The court also found that the copying of the content was done in good faith, in that the defendant claimed they didn’t know the content was copyrighted. Their good faith claim is supported by the fact that the infringer took down the content after the content creator contacted them.
On the second point of the nature of the copyrighted work, the court found that the content was used for it’s factual content, not for the creative nature or features.
Additionally, it was discovered that there were instances where the creator had published the image without copyright notices, which in the opinion of the court:
“…the scope of fair use is broadened when a copyrighted work has been previously published.
It is undisputed in the record that Brammer previously published the photograph on several websites as early as 2012, and at least one of these publicatoins did not include any indication that it was copyrighted.”
Amount of Content Used
This is the part that most content creators are familiar with. If an alleged infringer uses only a portion of the content, then it could help it be considered fair use.
In this case, the alleged infringer used approximately half of the original image. But it wasn’t the half amount that was important. The court found that the alleged infringer used:
“…no more of the photo than was necessary to convey the photo’s factual content and effectuate Violent Hues’ informational purpose.”
On the fourth factor, the plaintiff failed to produce evidence that the alleged infringers use of the content impacted the “potential market” for the content.
The court quoted the Supreme Court when stating that this fourth factor is “undoubtedly the single most important element of fair use.”
Court testimony from the content creator confirmed that the plaintiff had sold the image at least twice since the alleged infringement.
Takeaway: What this Means to You
In matters of the law, you should always consult an attorney. There are many articles and conference speakers who encourage others to “come down hard” on copyright infringers and file DMCA complaints.
But that approach could backfire if you have not consulted with an attorney to understand your actual legal standing.
For example, the DMCA provides the accused infringers the opportunity to answer a DMCA complaint and to receive a court hearing. This could mean court costs and possibly travel expenses.
If the court finds that the use of the alleged stolen content was transformative, then you may be out of luck and possibly out of pocket for litigation related fees.
Takeaway 2: Proceed with Caution
The common advise found in forums, Facebook Groups and marketing conferences about copyright infringement is to “come down hard” on the infringers.
But as you can see in the above referenced court case, copyright infringement is a nuanced issue.
This is why when it comes to copyright related issues, it’s always best to proceed with caution by consulting with an attorney in order to properly understand your rights and remedies.
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Images by Shutterstock, Modified by Author
