Fair Use: Landmark Cases


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

Although fair use is a statutory law codified by Congress, courts may also base their determinations on case law. The rulings of selected appellate and other courts (called courts of first impression) can be cited as precedents, and the most influential of those become landmark cases.

Here are some landmark cases concerning fair use and photography.

Thumbnails

Entire photos may be copied as thumbnails in online search results “if the secondary user only copies as much as is necessary for his or her intended use.” Kelly v. Arriba Soft Corporation, 2002.

Google can provide thumbnails in a search under fair use as the images are“highly transformative” and are “an entirely new use for the original work.” Perfect 10, Inc. v. Amazon.com, Inc., 2007.

Including thumbnails of Grateful Dead concert posters within a book was fair use as they were reduced in size and reproduced within the context of a timeline. Bill Graham Archives v. Dorling Kindersley Ltd., 2006.

Amount Copied

Copying 400 works from a book in a political opinion magazine is not fair use if those words form “the heart” of the book and are thus substantial. Harper & Row, Publishers, Inc. v. Nation Enters, 1985.

TV Artwork

Artwork used in the background of TV shows must be licensed when it clearly visible and recognizable with sufficient observable detail for the “average lay observer.” Ringgold v. Black Entertainment Television, Inc., 1997.

Photos that “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable” can be used without permission since the use is very minor (“de minimis”) and a fair use analysis is not required. Sandoval v. New Line Cinema Corp., 1998.

Commercial Copying for Education

Selling copies of articles as course-packs to students is not fair use when a market already exists for the licensing for course materials.Princeton Univ. Press v. Michigan Document Services, 1999.

Sculptures

Using a photo of a sculpture on a stamp without approval from the sculptor is not fair use, even when the government commissioned the sculpture. Gaylord v. United States, 2010.

Personal Use

Entire TV programs can be copied under fair use when done for private viewing and the purposes of time-shifting, as the “delayed” system of viewing does not deprive the copyright owners of revenue. Sony Corp. v. Universal City Studios, 1984.


History

For a fuller understanding, it is worth knowing the history of fair use.

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