Two recent cases demonstrate the limits of crying fair use in response to copyright infringement claims, particularly because they show the perils of arguing the defense to have a case dismissed at an early stage in litigation.
Courts employ a balancing test when analyzing whether a defendant's copying amounts to infringement or fair use. The balancing test is comprised of four factors:
- The purpose and character of the defendant's use;
- The nature of the copyrighted work;
- The amount and substantiality of the use;
- The effect of the use on the market for the copyrighted work.
In both of these cases the defendants tried unsuccesfully to argue that the purpose and character of their use was "transformative."
2-Second Display Not Automatically De Minimis Infringement in "48 Hours" Case
CBS got in hot copyright infringement water when it displayed a photo for two seconds in a "48 Hours" episode, and its fair use and de minimis infringement arguments failed to cool things down. The broadcaster was sued by photographer Steven Hirsch for its display of a 2010 photo of stalker Justin Massler in an episode aptly titled "Stalker." The photo had previously been licensed to the New York Post, but CBS failed to take a license. CBS chose to challenge the suit via a motion to dismiss, but the district court, with only the factual allegations in the complaint to consider, could not determine fair use or de minimis infringement at such an early stage and denied the motion.
The Court addressed the de minimis use argument in the context of substantial similarity, which requires crossing a “quantitative threshold” that depends on the “observability of the copyrighted work in the allegedly infringing work.” Observability itself depends on “the length of time the copied work is observable in the allegedly infringing work and such factors as focus, lighting, camera angles, and prominence." In rejecting this argument the Court noted that a substantial amount of the photo was displayed in clear focus. Notably, the Court found no authority for the proposition that such a brief period alone establishes de minimis use.
The Court also found that CBS' claim of transformative use was not "self-evidently correct based on a visual inspection" of the two works because the only change it made was to crop the photo.
Cool Cat Richard Prince Runs Out of Fair Use Lives in Latest Infringement Case
Serial infringer Richard Prince could not convince the judge in his most recent infringement litigation to throw out the case using the same transformative fair use argument he used in a prior case. Prince's modus operandi is to copy, reproduce and modify existing works to create his own art. He was sued in 2013 for taking 35 photographs of Rastafarians without permission and enlarging, tinting and coloring the photos, but won on appeal when the 2nd Circuit ruled his copying was a transformative fair use.
In the current dispute, Prince again took images, this time from Instagram, and merely added his own comments. One in particular, an image depicting a Rastafarian man standing shirtless against a white background, appeared with other photos in an exhibit and on a billboard promoting the gallery show, and as part of a Twitter compilation.
The Court in this case was not as receptive to the argument that Prince's use was transformative in nature and thus a fair use. The Court began by stating that the fair use defense is usually not addressed until the summary judgment phase, and ultimately held that in this instance Prince could not establish that his use was transformative as a matter of law.
Key to the Court's fair use analysis was its observation that Prince's work "simply reproduces the entirety of [the] photograph – with some de minimis cropping – in the frame of an Instagram post," and added a "cryptic comment..." The Court said more evidence would be needed to weigh the other factors, but concluded that “to the extent [it] is able to evaluate the statutory fair use factors on the basis of the facts alleged in the Complaint, the Court concludes that each of them weighs against a finding that Prince’s ‘Untitled’ makes fair use of [the photograph].”