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Ephemeral Fair Use

Posted by James Juo | Aug 23, 2022 | 0 Comments

“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107.

An “equitable rule of reason,” the fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1196 (2021) (citation omitted).

The fair use doctrine is a “guarantee of breathing space within the confines of copyright” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994); see also Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443, 450 (9th Cir. 2020) (noting “fair use” is a “backstop” that “counterbalance[s] the exclusive rights of a copyright”), cert. denied, 141 S. Ct. 2803 (2021).

The fair use doctrine does not, however, allow infringers “to avoid the drudgery in working up something fresh” by exploiting the value of an image they did not create. Campbell, 510 U.S. at 580.

Courts analyze the following four non-exhaustive factors in determining whether fair use applies: (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 U.S.C. § 107.

Photos of an Ephemeral Lake

Photographer Elliot McGucken captured a series of photographs of an ephemeral lake that had formed on the desert floor in Death Valley after heavy rains in March 2019. He then licensed his photos to several websites which ran articles about the lake.

Pub Ocean Ltd., a digital publisher, also posted an article about the lake using twelve of McGucken's photos, but it neither sought nor received a license.

Elliott McGucken alleged copyright infringement in the posting by Pub Ocean.

The U.S. District Court for the Central District of California granted summary judgment for Pub Ocean, concluding that it was entitled to a fair use defense as a matter of law.

Ninth Circuit Decision

On appeal, however, the Ninth Circuit determined that the first statutory factor weighed against fair use. Although “[c]ourts should be chary of deciding what is and what is not news” (see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985) (citation omitted)), the label of “news reporting” alone does not go very far. More importantly, the accused use was not transformative because embedding the photographs of the ephemeral lake within the text of the article merely illustrated the article's subject matter which was the ephemeral lake.

In footnote 4, the Ninth Circuit noted that Pub Ocean did not argue in its brief that the article treated McGucken's photos themselves as the news story, so that argument was waived and the Court “need not reach it.”

The second statutory factor, the nature of the copyrighted work, also weighed against fair use because the photos were the creative product of many technical and artistic decisions. See VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 744 (9th Cir. 2019) (holding that photos of residences were creative when they were “aesthetically and creatively shot and edited by professional photographers”).

The third factor, the amount and substantiality of the portion used, weighed against fair use because Pub Ocean used McGucken's photos extensively with only negligible cropping. Monge v. Maya Mags., 688 F.3d 1164, 1176 (9th Cir. 2012) (factor weighs against fair use if the infringer publishes “the heart” of an “individual copyrighted picture” without justification).

The fourth factor, market effect, weighed against fair use. McGucken had been licensing his photographs; and Pub Ocean's conduct, if carried out in a widespread and unrestricted fashion, would destroy that marketplace should it become widespread. “[M]ere duplication of the photos ‘serves as a market replacement for [the originals], making it likely that cognizable market harm to the original[s] will occur.'” Monge, 688 F.3d at 1182–83 (quoting Campbell, 510 U.S. at 591).

The Ninth Circuit thus held that the district court should have granted partial summary judgment for McGucken on the fair use defense. McGucken v. Pub Ocean Limited, No. 21-55854, 2022 WL 3051019, — F.4th — (9th Cir. Aug. 3, 2022).

The attorneys at Thomas P. Howard, LLC litigate copyright cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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