U.S. Copyright Case Law

A photo of an actual event can be protected.

“That the photographs were intended solely for commercial use has no bearing on their protectibility.”

“The Copyright Act makes clear that copyright exists in all works of authorship regardless of whether the copyright for such work is registered.”

“[C]opyright registration is a jurisdictional prerequisite to the right of the holder to enforce the copyright in federal court.”

“the only ‘originality’ required for [a] new work to be copyrightable … is enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors.”

“Variants that result from tinkering with a copied form are derivative works from that form, and it is a copyright infringement to make or sell a derivative work without a license from the owner of the copyright on the work from which the derivative work is derived.”

Photos of copyrighted toys only need to possess “sufficient incremental original expression to qualify for copyright.”

“As long as he was authorized to make the photos (he was), he owned the copyright in the photos to the extent of their incremental original expression.”

“[T]he original expression [the photographer] contributes lies in the rendition of the subject matter — that is, the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on.”

“The original expression in the [photos] is not particularly great (it was not meant to be), but it is enough under the applicable standard to warrant the limited copyright protection accorded derivative works under §103(b).”

“nothing in the Copyright Act suggests that derivative works are subject to a more exacting originality requirement than other works of authorship.”

“general principles [to copyright derivate works]: (1) the originality requirement for derivative works is not more demanding than the originality requirement for other works; and (2) the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.”

“To be copyrightable, a derivative work must not be infringing. See 17 U.S.C. §103(a);”

“the author of a derivative work must have permission to make the work from the owner of the copyright in the underlying work”

“Joint authorship entitles the co-authors to equal undivided interests in the whole work — in other words, each joint author has the right to use or to license the work as he or she wishes, subject only to the obligation to account to the other joint owner any profits that are made.”

“[C]ontribution even of significant language to a work does not automatically suffice to confer co-author status on the contributor … a specific finding of mutual intent remains necessary.”

Artistic contributors can be co-owners of copyright.”

Commissioned work is not work made for hire.

“Transforming a commissioned work into a work by an employee on the basis of the hiring party’s right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions.”

“To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor.”

“In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are:

• the skill required;
• the source of the instrumentalities and tools
• the location of the work;
• the duration of the relationship between the parties
• whether the hiring party has the right to assign additional projects to the hired party
• the extent of the hired party’s discretion over when and how long to work
• the method of payment;
• the hired party’s role in hiring and paying assistants
• whether the work is part of the regular business of the hiring party
• whether the hiring party is in business
• the provision of employee benefits
• and the tax treatment of the hired party

… No one of these factors is determinative.”

“Apart from the deadline for completing the [artwork], [the artist] had absolute freedom to decide when and how long to work. [The hirer] paid a sum dependent on ‘completion of a specific job, a method by which independent contractors are often compensated.’ … [The hirer] did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds.”

“[The artist] knew in 1981 what [the user] was publishing, what they were doing, and waited until 1987 to bring any action, and I do feel that that constitutes laches.”

“[T]he grant of permission [to copy an artwork] may be given orally or may be implied from conduct, … and whatever its origin, a non-exclusive license is enforceable because of the impracticality of requiring written licenses in all circumstances.”

Work made for hire. An independent contractor is owns copyright.

“determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor” since sculpture is not one of the nine categories of “specially ordered or commissioned” works in 101 definition. May be a joint work.

For fact-based works, “sweat of the brow” alone is not sufficient to bestow copyright.

“[T]he principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection.”

“[the selection, coordination, and arrangement of phone numbers in a directory] is not only unoriginal, it is practically inevitable”

“[t]he sine qua non of copyright is originality.”

“[originality] means only that the work was independently created by the author … and that it possesses at least some minimal degree of creativity.”

“the requisite level of creativity is extremely low; even a slight amount will suffice.”

“[o]riginality does not signify novelty; a work may be original even though it closely resembles other works.”

“[originality requires] independent creation plus a modicum of creativity.”

Basis of §102(b) of the Copyright Act of 1976.

“The difference between the two things, letters patent and copyright”

“[C]opyright’s idea/expression dichotomy ‘ strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.’”

“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” The interest served by republication of a public figure’s account of an event is not sufficient to permit nontransformative fair use.

“The Nation’s use had not merely the incidental effect but the intended purpose of supplanting the copyright holder’s commercially valuable right of first publication.”

“[The Effect on the Market] factor is undoubtedly the single most important element of fair use.” The basis of the “verbatim copying of some 300 words of direct quotation”

“[C]opyright’s idea/ expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.’” (quoting the lower court)

“[t]he promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report’ of the [work].”

“[The magazine] went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a ‘news event’ out of its unauthorized first publication of [the] copyrighted expression.”

“[T]the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. … [U]nder ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”

“[Photography can be] inevitable, given the shared concept”

“Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work’s idea and expression ‘merge.’”

“where the protected work and the accused work express the same idea, the similarity that inevitably stems solely from the commonality of the subject matter is not proof of unlawful copying”

“similarity in expression is noninfringing to the extent the nature of the creation makes similarity necessary”

The start of fair use in America.

“It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto.”

“In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”

“[N]o one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”

“What constitutes [Fair use] … is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion.”

“[T]he metaphysics of [fair use], where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”

Fair use and intent.

“[I]t is not conceivable to us that the copying of all, or substantially all, of a copyrighted [work] can be held to be a ‘fair use’ merely because the infringer had no intent to infringe.”

“The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.”

“The doctrine of fair use, originally created and articulated in case law, 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.”

Fair use even if request for permission is denied.

“the fair use determination often requires a complex and subtle evaluation of numerous mixed issues of fact and law.”

“The commercial nature of a use is a matter of degree, not an absolute”

“[The] decision to publish despite [plaintiff’s] denial of permission does not deserve [the] characterization [of bad faith].”

“borrowing 4.3 percent of the [work] was not unfair.”

A beauty pageant winner modeling portfolio was used in a news story.

“Unauthorized reproduction of professional photographs by newspapers will generally violate the Copyright Act of 1976; in this context, however, where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. §107.”

A celebrity couple’s six private wedding photos were stolen. Publishing all six photos to expose their marriage was ruled unnecessary for news reporting and thus not fair use.

“[O]ne [photo] … would certainly have sufficed … [defendant] used far more than was necessary to corroborate its story … ”

“[N]ewsworthiness, by itself, is insufficient to demonstrate fair use.”

“Although news reporting is an example of fair use, it is not sufficient itself to sustain a per se finding of fair use.”

“The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors.”

“Fair use is a central component of American copyright law.”

“[F]air use has bounds even in news reporting, and no per se ‘public interest’ exception exists.”

“[A news magazine] cannot simply take fair use refuge under the umbrella of news reporting.”

“[P]ublication of photographic evidence that constitutes proof of a newsworthy event is not automatically fair use …”

“The photos were not even necessary to prove [the] controverted fact … a public record may have sufficed to inform the public …”

“[The determination of fair use] is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment.”

“Waving the news reporting flag is not a get out of jail free card in the copyright arena.”

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Direct copying was not necessary for parody so not fair use.

“[was the original] copied in good faith to benefit the public or primarily for the commercial interests of the infringer.”

“Knowing exploitation of a copyrighted work for personal gain militates against a finding of fair use.”

“Parody or satire, as we understand it, is when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new art work that makes ridiculous the style and expression of the original.”

“By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist.”

“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”

A commercial parody can be fair use.

“[T]he 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.”

“The infringement need not be a complete or exact copy. Paraphrasing or copying with evasion is an infringement …”

“the test is whether the one charged with the infringement has made an independent production, or made a substantial and unfair use of the complainant’s work.”

“[protected expression includes] association, presentation, and combination of the ideas and thought which go to make up the [author’s] literary composition.”

“Moreover, we think Gentile’s use of these words may very well constitute a fair use of the Museum’s registered service mark, pursuant to 15 U.S.C. Section(s) 1115(b)(4). Section 1115(b)(4) permits a party to defend an infringement charge on the ground: [t]hat the use of the … term, or device charged to be an infringement is a use, otherwise than as a mark … of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party.”

“[T]the answer will essentially turn on whether consumers view the words, “ROCK N’ ROLL HALL OF FAME,” as a label for Gentile’s photograph, or as an indicator that Gentile’s photograph originated with or was sponsored by the Museum. As always, the touchstone will be the likelihood of consumer confusion.”

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“[A] finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used is strong indicia of no fair use.”

“a finding of a nonprofit educational purpose does not automatically compel a finding of fair use.” Copying for education fair use “a substantial copy of plaintiff’s booklet with no credit given to plaintiff. Under these circumstances, neither the fact that the defendant used the plaintiff’s booklet for nonprofit educational purposes nor the fact that plaintiff suffered no pecuniary damage as a result of Rowley’s copying supports a finding of fair use.”

Originality. You can copyright an artistic interpretation of a public domain work.

“no large measure of novelty is necessary [to make a new copyrightable work]” The term original should be read to mean “owes its origin [to an author, not that the work is] ”startling, novel or unusual, or a marked departure from the past.”

Trademark cannot preserve rights to a public domain work.

“The right to copy, and to copy without attribution, once a copyright has expired, … passes to the public.”

“once the patent or copyright has expired, the public may use the invention or work at will and without attribution.”

“the phrase [‘origin of goods’ in the Lanham Act] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.”

“the only ‘originality’ required for [a] new work to be copyrightable … is enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors.”

“Variants that result from tinkering with a copied form are derivative works from that form, and it is a copyright infringement to make or sell a derivative work without a license from the owner of the copyright on the work from which the derivative work is derived.”

Contributory infringement. Products that can be used for illegal copying are legal if there are substantial non-infringing uses.

“the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses …”

“[E]ven the unauthorized home time-shifting of respondents’ programs is legitimate fair use…. …”

“The mere absence of measurable pecuniary damage does not require a finding of fair use.”

“[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.”

“[to negate fair use one need only show that if the challenged use] should become widespread, it would adversely affect the potential market for the copyrighted work.”

Sender of DMCA takedown notice must consider fair use.

“[T]he fact remains that fair use is a lawful use of a copyright.”

“Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law.”

“A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit.”