In 2018, a court ruling on a copyright complaint highlighted a lesser-known loophole in copyright protections. The court determined that the alleged infringer was not guilty because, among other reasons, their use of the content was distinct from its original use.
### Four Factors to Determine Fair Use
The court assessed whether the reproduction of the photo constituted fair use by applying four factors:
1. The purpose and character of the use, including whether it is commercial in 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 on the potential market for or value of the copyrighted work.
Regarding the first factor, the court evaluated whether the new image derived from the original was transformative in nature, meaning how much the image was altered. Surprisingly, there is a 2009 precedent stating that a work can be transformative in function or purpose without any alteration or addition to the original.
The court first analyzed the function and purpose of the original image, determining it was “promotional and expressive.” They then found the copied image was used for informational purposes, thus deeming it transformative.
It is widely understood that one way to determine fair use is by evaluating the purpose of the copied content, such as its use in criticism.
### Transformative Use
There is a lesser-known concept referred to as “transformative.” In this instance, it pertained to how the image was used in a non-commercial manner, unlike its original commercial purpose. This distinction allowed the defendant to use someone else’s content without infringement consequences.
Wikipedia’s page on Fair Use notes the importance of the transformative aspect:
“It is arguable that the first factor and transformativeness in general have become the most important parts of fair use.”
The concept of “transformative” use is not widely recognized in the search and content marketing industries. In this case, the court found the defendant’s use of the original content transformative because:
“While Brammer’s purpose was promotional and expressive, Violent Hues’ purpose was informational: to provide festival attendees with information regarding the local area. Moreover, this use was non-commercial, as the photo was not employed to advertise a product or generate revenue.”
The court highlighted the non-commercial nature of the defendant’s use versus the original commercial and promotional intent. The original work was not intended to be informational, but the copied content was repurposed for that aim, suggesting it was transformative.
### Other Reasons for Dismissing Infringement Claims
The court also considered the defendant acted in good faith, claiming ignorance of the content’s copyright status. This claim was bolstered because the infringer removed the content upon being contacted by the creator.
Regarding the nature of the copyrighted work, the court found it was used for its factual content, not for creative elements.
Additionally, the creator had distributed the image without copyright notices on several occasions, leading the court to state:
“The scope of fair use is broadened when a copyrighted work has been previously published.”
### Amount of Content Used
This point is familiar to most content creators. If an alleged infringer uses only a portion of the work, it may still be considered fair use. In this instance, the alleged infringer used about half of the original image, focusing on the amount necessary for factual content and informational purpose.
The fourth factor was unmet by the plaintiff, who failed to demonstrate that the alleged use affected the content’s “potential market.”
The court emphasized the fourth factor’s significance by quoting the Supreme Court: “undoubtedly the single most important element of fair use.”
Court testimony revealed that the plaintiff had sold the image twice since the initial infringement.
### Takeaway: What This Means to You
Legal consultation is crucial in copyright matters. Many articles and speakers advise aggressively pursuing copyright infringers, but doing so without legal advice could lead to complications.
For instance, the DMCA grants alleged infringers an opportunity for a court hearing, potentially resulting in court costs and travel expenses. If the court finds the use transformative, plaintiffs may incur litigation fees without compensation.
### Takeaway 2: Proceed with Caution
Common advice from forums, groups, and conferences is to aggressively address copyright infringement. However, as demonstrated in the referenced case, copyright issues are nuanced.
Therefore, it is essential to consult with an attorney to fully understand your rights and available remedies in copyright matters.
