Author: Courtney Lang

This is the third and final edition of our blog on insightful movie copyright cases for film and TV industry professionals. Part 1 of the blog addressed copyright infringement and copyrightability while Part 2 discussed the fair use defense to copyright infringement. This ultimate installment discusses a joint authorship copyright case in the context of TV and movie making.

Who Is the “Author” of an Audiovisual “Work” (and the Importance of Contracts): Aalmuhammed v. Lee

Throughout the years, the question of what constitutes an “author” has arisen in the context of different forms of media. In 1884, the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony stated that the author of a photograph is the “master mind,” the one “who has superintended the arrangement, who has actually formed the picture by putting the persons in position.” More than a century later, the Ninth Circuit Court of Appeals in Aalmuhammed v. Lee determined who authors a copyrighted film.

Jefri Aalmuhammed, a filmmaker and expert on civil rights figure Malcolm X, was approached by actor Denzel Washington to help in the making of Spike Lee’s 1992 film “Malcolm X.” Aalmuhammed’s contributions to the film were extensive (e.g., several script revisions, conception of two scenes with new characters, direction of Washington and other actors on set, and selection of prayers and religious practices for characters). However, his request for credit as a co-writer of the film was denied and he was ultimately credited as an “Islamic Technical Consultant.” Afterwards, he independently applied for copyright registration with the U.S. Copyright Office as co-creator, co-writer, and co-director of the film, then promptly sued Lee and others on the ground that the film was a “joint work” of which he was an author.

The Copyright Act defines “joint work” as “a [copyrightable] work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” The Court of Appeals ultimately found that “Malcolm X” was not a joint work because Aalmuhammed lacked sufficient creative control to be considered the “master mind” of the work. The court held that, “in the absence of a contract to the contrary,” the author of a movie is someone with artistic control—potentially a producer, screenwriter, director, or star actor—and in the case of “Malcolm X” the mastermind was director Spike Lee.

Use of the phrase “in the absence of a contract to the contrary” is important here as courts look to the intent of the parties when there is a claim of joint authorship, and in many circumstances that intent is recorded in a signed contract. But in cases such as Aalmuhammed where the parties’ intent is disputed or unclear, courts must look at other aspects of the relationship and creative process to infer intent. As it turned out, several of Aalmuhammed’s contributions made their way into the final film, but Lee always had the final word on what made the cut. That decisionmaking autonomy was strong evidence of the lack of joint authorship.

The court in this joint authorship copyright case also considered the policy considerations of the Copyright Clause of the U.S. Constitution. The court stated that it would not “promote … Progress” of artistic works to vest authorship rights in anyone who made a copyrightable contribution to a film. If that were the case, everyone from the director down to a makeup artist would have equal ownership in a film. In the court’s view, if that were the case, filmmakers like Spike Lee, “could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.”

Aalmuhammed also illustrates how useful contracts are for filmmakers to nip potential disputes in the bud. Did Aalmuhammed and Lee have to go through a drawn-out legal battle? Perhaps not, if they had simply signed a contract. Not all filmmaking projects have the financial and legal resources to obtain licenses from every contributor. Given that reality, courts will often find that contributors to a film or TV show have granted implied licenses. Nevertheless, proactively agreeing to legally enforceable terms can usually spare all involved parties several headaches.

Conclusion

Copyright considerations are important for TV and filmmakers and the cases presented throughout the entirety of this blog series illustrate the different decisions that such artists should consider and think about during the creative process. In exploring copyrightability, copyright infringement, fair use, and joint copyright authorship issues, we hope these movie copyright cases have shed ample light for film and television professionals to navigate the intricacies of the discipline.

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In the previous iteration of this blog (Part 1), we presented several movie copyright cases addressing the issues of copyright infringement and copyrightability. In this post, we look at TV and movie fair use cases to learn about the nuances of copyright law’s fair use defense.

The Fair Use Exception

Fair use is a hot-button topic in copyright law that arises frequently in movie copyright infringement cases. When the elements of copyright infringement—actual copying and improper appropriation—are satisfied, an infringement defendant may still avoid liability if they can argue that the inclusion of copyrighted material constitutes fair use. There are four factors to the fair use analysis outlined in the Copyright Act, Title 17 United States Code, Section 107:

One fair use concept that can prove elusive or confusing for filmmakers is “transformative use” under the first fair use factor. Established by the Supreme Court in Campbell v. Acuff-Rose Music, the transformative use inquiry asks whether a copying work “merely ‘supersede[s] the objects’ of the original creation . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. . . .” In Campbell, the question was whether a spoof of Roy Orbison’s song “Oh, Pretty Woman” was sufficiently transformative to tip the first fair use factor in favor of the parodist defendants.

Courts have struggled to appropriately apply the transformative use test in the decades since Campbell’s issuance, so the Supreme Court clarified the transformative use test in the recent case of Andy Warhol Foundation v. Goldsmith. Justice Sonia Sotomayor’s opinion explains that transformative use does not alone control the first factor, let alone the entire fair use analysis. Furthermore, what constitutes “new expression, meaning, or message” is an objective inquiry for courts to address, not a question of the subjective intent of a copier (or any individual critic). Finally, whether a use is transformative is directly connected to the other fair use factors, especially factors three and four. For the third factor, the less that is copied verbatim and the more alteration to what is taken, the more likely a finding of transformative use. And as for the fourth factor, a lack of transformative use means that a new work fulfills the same purpose as the original and thus that the new work will likely serve as a market substitute. To illustrate, consider the following movie fair use casesfrom the Ninth Circuit Court of Appeals:

• In Elvis Presley Enters., Inc. v. Passport Video, documentary filmmakers argued that their use of copyrighted video clips qualified as a fair use when they were sued for unauthorized inclusion of the clips in their documentary about musician Elvis Presley. The Court of Appeals upheld the district court’s finding that the first fair use factor weighed against Passport’s fair use defense because the documentary was of a commercial nature and the use of the clips was largely not transformative. The court did note that in some circumstances there was transformative use because the clips played “for only a few seconds and [were] used for reference purposes while a narrator talk[ed] over them or interviewees explain[ed] their context in Elvis’ career.” But in many other circumstances the documentary showed clips which went uninterrupted for 30–60 seconds and featured no additional commentary, thus evidencing a lack of transformative purpose and indicating that the clips were being used to simply rebroadcast their entertainment value that plaintiffs rightfully owned. Also, in relation to the fourth factor—the effect upon the potential market for the copyrighted works—the court affirmed the lower court’s opinion that this factor weighed against a fair use finding because the defendants’ use of the clips for entertainment purposes would affect plaintiffs’ abilities to license their clips of Elvis for their entertainment value.
• In SOFA Entm’t, Inc. v. Dodger Prods., Inc., makers of the musical “Jersey Boys” included within the theatrical performance a copyrighted clip from “The Ed Sullivan Show.” In this instance, the Court of Appeals agreed with the defendants’ fair use defense. Among the differences between this case and Elvis Presley Enters. was that the Ed Sullivan clip served a transformative purpose because it was used as a “biographical anchor” to mark a milestone in the careers of the Four Seasons. Additionally, under the third fair use factor, the court found that the Ed Sullivan clip was very short (lasting only seven seconds). Lastly, the fourth factor weighed in favor of fair use because the inclusion of the clip did not amount to a market substitute for “The Ed Sullivan Show”— the clip was very short and appeared only one time in a show that was not reproduced on video for easily repeatable viewing, so it did not cause market harm to the original.

The case of Ringgold v. Black Entertainment Television, Inc., mentioned in Part 1 of this blog, also illustrates the four fair use factors at play in the television industry. In Ringgold, the Second Circuit Court of Appeals found that BET was liable for copyright infringement due to the use of Ringgold’s copyrighted poster in an episode of the show “Roc.” The poster appeared on screen for less than 30 total seconds, never visible for more than five seconds at a time, and was largely out of focus and partially obstructed. Even so, the Second Circuit Court of Appeals rejected BET’s fair use defense.

The court held that the first and fourth fair use factors weighed against BET. Under the first factor, the court found that the purpose of BET’s use was identical to that of Ringgold in creating her poster: for decoration. It did not matter that the poster’s inclusion in the episode seemed to lack thematic significance and may have been arbitrary; there was no new expression, meaning, or message added to the work and the purpose of the use was the same as the original purpose, thus nothing transformative about the use. As for the fourth factor, similar to Elvis Presley Enters., the court noted that it would cause market harm to Ringgold if others like BET used a copyrighted work without permission when the copyright holder had a business of profiting by licensing her artwork.

The Ringgold court also pointed out the importance of considering section 107 as a whole. Specifically, courts should examine whether a defendant’s use falls under one of the “normally invoked” purposes of fair use enumerated in the statute: criticism, comment, news reporting, teaching, scholarship, and research. The court admitted that these examples are not an exhaustive list, but it maintained that “the illustrative nature of the categories should not be ignored,” and none of those categories applied to BET’s use of Ringgold’s copyrighted poster.

As with the cases described in Part 1 of this blog, these cases should serve as further evidence to filmmakers that it is often advisable to seek a license before including a copyrighted work in a film or documentary. If permission is denied and a copyrighted work is used in more than a de minimis amount (because de minimis uses are permissible), then the original work should be transformed with new expression, meaning, or message— and a filmmaker should use only the amount necessary to achieve the transformative use purpose. However, be careful since, after the Supreme Court’s decision in Goldsmith, the transformative use test bears significantly less weight on the fair use analysis.

To Be Continued

The fair use doctrine is intricate and depends on the specific facts of a case, but it is the most prevalent defense to copyright infringement. Familiarity with the concepts addressed in this blog installment on TV and movie fair use cases as well as Part 1’s blog on copyright infringement and copyrightability could prove very beneficial to film and TV professionals. The third and final installment of this blog series will present movie copyright cases touching on the issue of authorship.

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Moviegoers may be familiar with the cinematic musings of actress Nicole Kidman: “We come to this place for magic . . . That indescribable feeling we get when the lights begin to dim and we go somewhere we’ve never been before.” And just as the best films manage to enlighten and enchant audiences, there are several movie copyright cases which can illuminate relevant copyright law issues for film and TV industry professionals.

Presented below is a selection of movie copyright cases of which filmmakers and other audiovisual artists should be aware, as well as tangible takeaways from each. Part 1 of this blog will focus on the issues of copyrightability and movie copyright infringement cases. Part 2 focuses on movie fair use cases. Finally, Part 3 focuses on authorship.

Laying Out the Elements of Copyright Infringement: Copying-in-Fact and Improper Appropriation

There are two general requirements to establish copyright infringement: a plaintiff’s ownership of a valid copyright and a defendant’s unauthorized copying of protected elements of the work. Assuming that a work has a valid copyright, unauthorized copying breaks down into two additional factors: copying-in-fact and improper appropriation. The following television and movie copyright infringement cases explain these factors in more detail, and should provide useful insights for TV and filmmaking professionals who intend to include copyrighted works as props or in the background of their movies and TV shows.

Copying-in-fact

The first element of copyright infringement is straightforward. A defendant must have created an infringing work by copying from a copyrighted work, rather than through independent creation. Aside from a defendant admitting to copying, the best evidence of actual copying would be a person who can testify to witnessing the defendant copying material from a copyrighted work. In cases where such strong evidence is unavailable, copying-in-fact can also be inferred through evidence that a defendant had access to a copyrighted work and that the allegedly infringing work bears sufficient similarities to the copyrighted work.

These two elements of actual copying—access and probative similarity—possess an inverse relationship. An insufficiency in the evidence of a defendant’s access to a copyrighted work may be supplemented by evidence of high degrees of probative similarities (and vice versa). In extreme circumstances, similarities may be so striking between two works that copying-in-fact will be presumed to have occurred even if there is little or no evidence of access. The theory of striking similarity rests on the belief that greater similarity in the expressions between the works indicates a lesser likelihood of coincidental independent creation.

This inverse relationship between access and probative similarity was illustrated in the movie copyright infringement case of Price v. Fox Entertainment Group, Inc. With insufficient evidence of access, the plaintiff screenwriters in Price alleged striking similarities between their 2001 screenplay for “Dodgeball: The Movie” and defendant’s 2004 film “Dodgeball: A True Underdog Story.” The similarities identified by the plaintiffs were that both works involved dodgeball competitions between teams of overmatched misfits and teams of bullies, and both works made the erroneous claim that the game of dodgeball had its roots in ancient China. However, the district court for the Southern District of New York held that this was insufficient to establish striking similarity.

While the existing similarities may have been probative of copying, the court found that these similarities alone were not enough to be striking because there remained sufficient dissimilarities between the two films. For example, the screenplay’s main characters were highschoolers while the film followed adults, and the protagonists of each work had different goals (winning romantic affection vs. preventing foreclosure of a gym, respectively). Therefore, the court required the plaintiffs to show access and probative similarity in order prove that actual copying took place.

Qualitative Improper Appropriation and Copyrightability

The second element of copyright infringement is often confusingly referred to as “substantial similarity” between works. Some courts opt for the distinct but more jargony term “improper appropriation.” This element looks to whether the similarities between a copyrighted work and an allegedly infringing work amount to actionable infringement, both qualitatively and quantitatively.

Qualitatively, improper appropriation asks whether a defendant copied something which is copyrightable, because not all aspects of a copyrighted work are protected by copyright. Copyright law does not protect indistinct character archetypes and plots, abstract theories, ideas, historical facts, or commonplace artistic conventions. For example, copyright law’s scenes-à-faire doctrine (from the French for “scenes that must be done”) prohibits copyright protection for stock artistic devices that are so foundational to the telling of particular stories that all creators must have unfettered access.

The scenes-à-faire doctrine is illustrated by the Second Circuit movie copyright case of Hoehling v. Universal City Studios, Inc. The plaintiff, author A.A. Hoehling, wrote a book titled “Who Destroyed the Hindenburg.” It was a reportorial-style book in which Hoehling speculated that Hindenburg crewman Eric Spehl destroyed the airship to please his communist girlfriend. The defendant, Michael MacDonald Mooney, wrote his own book titled “The Hindenburg,” which he admitted to consulting Hoehling’s book in preparing his own. Hoehling sued Mooney and Universal City Studios for copyright infringement over the studio’s motion picture adaption of Mooney’s book.

Common across Hoehling’s book, Mooney’s book, and Universal Studio’s movie was a scene taking place in a German beer hall on the eve of the Hindenburg’s final voyage, during which all three works used commonplace German greetings and songs. The Court of Appeals held these similarities to be scenes-à-faire. It would be virtually impossible to tell this tragic historical tale of the soon-to-be-victims in a vibrant setting without using the German greetings and songs necessary to establish setting. Creativity would be severely hindered if such ubiquitous devices as these could be owned by only a handful of creators. The Court of Appeals also held that the essential plot of Hoehling’s book, specifically that Eric Spehl was identified as the saboteur of the Hindenburg, was not copyrightable because fact-based interpretations of historical events are not copyrightable.

Another example of insufficient qualitative copying is the seminal case of Nichols v. Universal Pictures Corp., where a playwright wrote a Romeo-and-Juliet style play about a forbidden love affair between the children of Jewish and Irish Catholic families. The playwright sued Universal Pictures for copyright infringement after the studio produced a film with the same general plot structure. The Second Circuit Court of Appeals held that the common characters and plots between the two works were too generic to be copyrightable. All creators require access to broad ideas, plots, and tropes which they can use as the foundation of their unique works. Even so, the Nichols court did note that a more detailed, distinct plot or character could very well be protectable. For instance, there is no copyright protections in the story of a sheltered youth raised by his aunt and uncle who is led on a grand adventure by a mysterious stranger. However, add lightsabers and a mystical “force” to the story and you have “Star Wars”; conversely, add magic wands, broomsticks and a lightning-shaped scar and you have “Harry Potter.” (For further reading on Nichols, see the Copyright Alliance’s previous blog on Literary Copyright Cases Writers and Publishers Should Know).

The lesson here is that when filmmakers create their movies and movie universes, they should keep in mind that creating and going beyond simple stock settings and characters will result in stronger copyright protections, since plots, tropes, and other generic and abstract elements are not copyrightable elements of a creative work.

Quantitative Improper Appropriation and the De Minimis Exception

As explained above, qualitative improper appropriation means copying something which is protected by copyright. Quantitatively, improper appropriation also requires an alleged infringement to have taken copyrighted material which is more than “de minimis non curat lex” (Latin that translates to “trivial such that the infringement is not actionable”). The law does not concern itself with trifles, so insignificant amounts of copying defeat a finding of infringement.

Noteworthy TV and movie copyright infringement cases involving the de minimis exception usually result from the display of copyrighted works as props or background and set pieces. For example, in Gottlieb Development LLC v. Paramount Pictures Corp., Gottlieb’s “Silver Slugger” pinball machine appeared in the background of the movie “What Women Want.” In Sandoval v. New Line Cinema Corp., a photographer brought suit for the use of ten of his copyrighted photographs in the movie “Seven.” And in Ringgold v. Black Entertainment Television, Inc., Ringgold sued over the inclusion of her copyrighted poster during a scene of a single episode of the show “Roc.”

When determining whether copying in a film or TV show is de minimis, courts consider factors including, but not limited to:

• the prominence of the copyrighted work;
• observability of the work;
• screen time, both continuous and disjointed; and
• qualitative importance to the scene and setting.

In Gottlieb, the District Court for the Southern District of New York found that the use of Gottlieb’s pinball machine was de minimis because the machine appeared only in one three-and-a-half-minute scene, and then “only for seconds at a time, always in the background, and always partially obscured” either by actors or other set pieces. The court also found that there were no thematic or qualitative connections between the pinball machine and the film itself. 

Likewise, in Sandoval, the Court of Appeals for the Second Circuit held the use of the ten photographs to be de minimis because the photos appeared in poor lighting, at great distance, and only for brief periods (less than 36 seconds in a full-feature length film) in several separate shots.  However, in Ringgold, the very same court held the use of plaintiff’s poster to be more than de minimis, even though the work was largely out of focus, often partially obstructed, and never visible for more than five seconds at a time (and on screen for less than 30 seconds total).

Sandoval was decided a year after Ringgold, and the Court of Appeals distinguished the cases by noting that unlike Sandoval’s photos, Ringgold’s artwork was “clearly visible” and “recognizable as a painting … with sufficient observable detail” such that the “average lay observer” could make out the subjects and style of the poster. Furthermore, the court held that brief but repeated shots of Ringgold’s poster reinforced its prominence, while the shots of Sandoval’s photos had no cumulative effect because the photos were not distinguishable.

The takeaway for TV and filmmakers is that it is often best to ask permission of copyright holders before using their works. This is surely the safest course of action because the substantial similarity question is a subjective one, so any given judge or jury may view a use as more than de minimis. However, if permission is not requested or granted, then the unauthorized use should be so minimal that viewers cannot identify the works.

To Be Continued

Copyright infringement and copyrightability can be difficult concepts to understand, but we hope this selection of TV and movie copyright infringement cases has illuminated those issues for TV and filmmakers. Stay tuned for the next installments of this blog presenting movie copyright cases which address copyright law’s fair use doctrine and the meaning of authorship.

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It’s that time when teachers are busy preparing for the new school year. In developing curricula for students, teachers often wonder how copyright law applies to them when they incorporate copyrighted works into lesson plans by having students read certain articles, making copies of reading materials, playing videos or music for students, or reading aloud to students. Here are a few tips to keep in mind to understand how to navigate copyright law for educators.

Tip 1: Use Licensed or Lawfully Purchased Copies for Classroom Use; Otherwise Use Public Domain Works

The best way for teachers and other educators to ensure that they are complying with copyright laws is to use licensed works or to purchase lawfully made copies of a work. Many copyright owners and authorized retailers offer various licenses to accommodate classroom and pedagogical needs, for instance, including an article in a course pack or using works in testing materials. School and public libraries may also have secured licenses which allow students and their patrons to access, read, and learn from a plethora of digital copyrighted works or have loaning systems that allow for the lawful exchange of, access to, and use of such works.

Other kinds of licensed works, like works with Creative Commons licenses, may also be used by teachers for their classroom needs—just make sure to abide by the license terms, which can require attribution to the author or limit other uses. Teachers can also use works that are not protected by copyright law and therefore do not need a license, such as works that are in the public domain including works authored by the U.S. government. (To learn more about how to investigate the copyright status of a work, check out this U.S. Copyright Office Circular.)

Alternatively, teachers can also provide students with links to publicly accessible articles or other copyrighted materials, so long as they make sure that the links direct students to legal digital copies from credible and authorized sources. For example, a news publisher may publish one of its articles on its website that is publicly available, and a teacher can provide students with a link to that article.

Using legal copies of works in the classroom and for pedagogical purposes not only provides copyright assurances for teachers, but it also ensures that students are learning from credible, trustworthy, and verifiable sources and materials. It is also critical for teachers to know where they are sourcing classroom material, since some copyright exceptions, including exceptions for certain classroom uses, including the Technology, Education and Copyright Harmonization Act (TEACH) Act, do not apply when the copy of the work is an infringing copy or otherwise not lawfully made or acquired.

Tip 2: Performance and Display of Copyrighted Works in Digital Transmissions Require Further Care

Exceptions to copyright law, including the first sale doctrine, educational exemptions and the TEACH Act, are found in sections 107, 109, 110, and 112 of the Copyright Act, which outline certain exceptions for the use of copyrighted works for the classroom or for educational purposes.

Before the passage of the TEACH Act in 2002, the Copyright Act generally allowed for teachers and students in face-to-face teaching activities to publicly perform or display a copyrighted work, subject to certain limitations. The TEACH Act amended section 110(2) to expand both the exception and the categories of works that are covered in the digital age, allowing for limited performance and display of copyrighted works by or in the course of a digital transmission (i.e., via the internet) for pedagogical needs.

As noted, there are additional considerations when it comes to displaying and performing copyrighted works in a digital transmission (i.e., via the internet) and these rules apply to:

• the performance of certain literary works, musical works, or reasonable and limited portions of any other works, or
• the display of a work, as it would typically be displayed in the course of a live classroom session.

These digital uses also come with several additional considerations that teachers should keep in mind, including that:

• the performance or display of the work must be supervised by the instructor as an integral part of the class session;
• the performance or display of the work must be directly related and of material assistance to the teaching content of the transmission;
• the work being used must not be typically produced or marketed primarily for performance or display as part of integral teaching activities transmitted via digital networks;
• the work being used must not be a textbook, course pack, or other work that is typically used by students for their independent use/retention;
• any transmission of a work must be limited to students officially enrolled in the course.

Additionally, the school transmitting the copyrighted work must:

• be an accredited, nonprofit, educational institution or government body;
• institute copyright policies that provide materials and accurate information on copyright law compliance;
• provide students with notice that the materials may be subject to copyright protection;
• in the case of digital transmission ensure that:
  • there are technological measures that reasonably prevent permanent downloads or any retention of the work for longer than the class session and prevent further sharing or distribution by recipient students to others; and
  • the school itself must not interfere with technological measures used by copyright owners of the work to prevent such retention or unauthorized further dissemination.

The University of Texas Libraries has a handy TEACH Act Checklist which provides information on copyright law for educators who want to ensure they are complying with copyright laws or are covered by the exceptions detailed above. Educators should also consult with the copyright policies and advisors in their institutions.

Tip: Classroom displays and performances of certain copyrighted works are usually permitted in live, face-to-face classroom settings. In the classroom context, such uses of copyrighted works via digital transmissions may also be permitted under the TEACH Act. However, when it comes to such uses, teachers should keep additional safeguards in mind, like restricting download and sharing capabilities of the materials and limiting these materials to students enrolled in the course.

Tip 3: Fair Use Guidelines for Teachers: It’s a Balancing Act

Most teachers have heard of copyright law’s fair use exception. The fair use exception excuses certain uses of copyrighted works that would otherwise be considered an infringement (i.e., the copyright owners’ rights are exercised without permission, and no other copyright exception, like the TEACH Act, would apply).

Unfortunately, the fair use exception is often misunderstood. The preamble contained in the fair use provision (found in section 107 of the Copyright Act) lists several typical uses that would qualify as a fair use and “teaching” is one such use. However, the mere listing of a type of use, like teaching, in the fair use preamble doesn’t mean that all uses of copyrighted works for teaching will automatically qualify for the exception.

There is no black-and-white rule for determining whether a use qualifies as a fair use. Instead a fair use analysis requires a balancing of four factors set forth in section 107:

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 on the potential market for or value of the copyrighted work.

Within each of the four fair use factors, there are additional criteria that courts examine when determining whether a particular use qualifies for the fair use exception. You can learn more about the details of those considerations on our FAQ page.

The main tip is this: there are no black-and-white or definite rules for fair use, and determining whether the classroom use of a copyrighted work qualifies for the fair use exception requires a balancing of all four factors on a case-by-case basis— no one factor controls the outcome. However, here are a couple fair use guidelines for teachers:

• Noncommercial, educational use of copyrighted works may weigh in favor of fair use, as educational uses are listed as an illustrative case of what typically qualifies as fair use— but it is not always the case. If educators typically purchase or license a work (e.g., a textbook) for use in their classrooms, this fact will likely weigh heavily against the fourth fair use factor favoring fair use.

• There are no black-and-white rules in a fair use analysis, so any categorical rules like “Only using 30 seconds or less than 3 minutes of a work qualifies the use for the fair use exception” or “Using less than 20 lines of a work qualifies the use for the fair use exception” are simply not true. Only use what you need of the copyrighted work to carry out your pedagogical needs. Using too much or too many parts (or the “heart of the work”) of the copyrighted work, may weigh against fair use. For example, you may not need to show an entire two-hour movie for students to provide critique or commentary when a shorter clip could easily achieve the same purpose.

• The U.S. Copyright Office has a helpful document, Circular 21, which outlines further fair use guidelines and illustrations that resulted from collaborations of ad hoc committees formed by copyright owners and educators. Those guidelines address classroom copying in not-for-profit educational institutions for books, periodicals, and music and provide further interpretations of the minimum standards of fair use, and includes guidelines like ensuring to limit the number of works copied that have the same author and that copying should not substitute for the purchase of books, publishers’ reprints or periodicals. But again, these guidelines should be used as such for educators in making fair use determinations, and not as definitive, black-and-white rules. Fair use analysis requires a balancing of all four factors.  

Tip: While teaching is exemplary of a use that may qualify for the fair use exception, it does not automatically qualify the use for the exception. Fair use requires a balancing of all four factors, but a few initial considerations may include whether the way the work will be used is typically licensed by educators and whether only the necessary amounts of the copyrighted work relative to the whole work are being used to achieve pedagogical goals.

Tip 4: Educating Students About the Difference Between Plagiarism and Copyright Infringement

At the beginning of the school year, it is also helpful to provide students with a primer on using copyrighted works for school assignments and projects. In the educational context, one of the most important concepts for students to understand is the difference between plagiarism and copyright infringement. Students who understand the differences and recognize the consequences of both will take more away from the learning process and will be able to employ this important knowledge and skill beyond the classroom.

While the two concepts may appear to be somewhat similar, there are significant differences between them. Plagiarism is an important ethical consideration that students should abide by in order to maintain academic integrity and responsibility over the assignments that they work on. Best practices to safeguard against plagiarism including properly citing to and crediting the sources of any material that is not the student’s own. Copyright infringement, on the other hand, is a legal consideration, which occurs when a copyright owner’s rights are being infringed—i.e., a work is reproduced, displayed, a derivative work is prepared, publicly performed, publicly performed without permission.

There may be copyright infringement without plagiarism, plagiarism without copyright infringement, and sometimes, even both. For example, if an entire news article is copied, but the student gives credit to the journalist, that qualifies as copyright infringement, but not plagiarism. On the other hand if a few sentences from that article are incorporated into a student’s report without credit, that may not be copyright infringement, but it is likely to be plagiarism. If the student copies the entire article must fails to give credit, that would be both copyright infringement and plagiarism.

Tip: By passing on knowledge to students of the differences and importance of both plagiarism and copyright infringement considerations, teachers can look forward to fewer unpleasant surprises when reviewing classroom assignments and instill lifelong ethics and skills for students.

Hats Off to the Teachers!

To all teachers gearing up for the new school year, we hope this blog post on copyright law for educators provided some insights and clarity into how copyright law applies in the classroom context and how various pedagogical goals to educate the next generations can be achieved. For more information about copyright law, fair use, and other topics discussed in this blog post, visit the Copyright Alliance’s FAQ pages.

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If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

On May 18, 2023, the U.S. Supreme Court issued its opinion in Andy Warhol Foundation v. Goldsmith, a case that was one of the more impactful decisions in recent memory for not only photographers but also for the entire creative community. The dispute in the case centered around Andy Warhol’s unauthorized use of photographer Lynn Goldsmith’s photograph of the musical artist Prince to create several silkscreen prints. The Warhol Foundation claimed that the use of Goldsmith’s photograph was highly “transformative” under the first factor of the fair use test. The Supreme Court appropriately reined in the “transformative” test by making clear that it is not controlling of a fair use analysis and doesn’t even control a factor one analysis.

It’s clear that from the Warhol case that photography copyright cases have been important in the development of copyright law. This blog reviews influential photography copyright cases leading up to and including the Supreme Court’s decision in the Warhol case so photographers and users of copyright protected photos can understand the current scope and limits of protection for this highly creative artform.

Of course, it’s important to remember that all copyright cases have unique facts that influence a court’s decision. Thus, photographers should not assume that a result in any given case guarantees a similar result in another case. However, past cases are helpful guidance for photographers (and creators who incorporate existing photographs into their works) who want to know how copyright law applies in the photography context.

Establishing That Photographs Can Be Originally Authored: Burrow-Giles Lithographic Co. v. Sarony

Congress extended copyright protection to photographs by amending the Copyright Act in 1865. Though that extension was challenged by The Burrow-Giles Lithographic Company, the U.S. Supreme Court upheld the Copyright Act’s recognition of photographs as protectable works in Burrow-Giles v. Sarony. There, the Court held that photographs are eligible for copyright protection when they are the “original intellectual conception of the author”—in other words, photographs are protected by copyright law because they are originally authored works.

The dispute arose when The Burrow-Giles Lithographic Company reproduced photographer Napoleon Sarony’s photograph of Oscar Wilde for celebrity photograph collectors without Sarony’s permission. Sarony sued, claiming that the unauthorized reproduction infringed his copyright in the photograph. Burrow-Giles argued that Congress could not constitutionally extend copyright protection to photographs, alleging that photographs only mechanically captured scenes that actually existed and did not amount to the level of original authorship needed for copyright protection.

The Court rejected Burrow-Giles’ argument, stating that the features of Sarony’s photograph indicated that the photograph is a creative work, rather than a mere mechanical reproduction. The Court reasoned that the photograph at issue represented Sarony’s original authorship (or “intellectual conception”) because Sarony posed Oscar Wilde in front of the camera to present “graceful outlines,” arranged the light and shade of the photograph, and suggested Wilde’s desired expression based on Sarony’s own, creative idea on how the photograph should look. By expressing his conscious choices resulting in the specific tangible photograph that portrays Wilde in a “harmonious, characteristic, and graceful picture,” Sarony made an original work of art that goes beyond a mechanical reproduction. Thus, the Court held that Sarony authored an original work, and the Oscar Wilde photograph accordingly qualified for copyright protection.

Examining the Protectable Elements in a Photograph: Mannion v. Coors

A defendant is liable for copyright infringement when the new, allegedly infringing work is substantially similar to the protectable elements of the underlying work. That is why in a photography copyright infringement case, courts usually first examine the copyrightable elements of a photograph when determining whether infringement took place.   

Although many courts over the years have discussed what elements in a photograph are creative and original enough to be protected under copyright law, tailored guidance comes from Mannion v. Coors Brewing Co. There, the court in the Southern District of New York held that the copyrightability of a photograph stems from the non-mutually exclusive categories of “the photograph’s rendition, the photograph’s timing, or the author’s creation of the subject,” viewed within the context of the entire image.  

The case centered around a photograph of NBA player Kevin Garnett, taken by Jonathan Mannion. Mannion’s photograph featured a bottom-up portrait of Garnett, placed against a blue sky backdrop. The photograph focused on Garnett’s hands, and the jewelry on Garnett’s hands and neck that Mannion told Garnett to wear. Two years after the photograph was published, an advertising agency used the photograph for a “comp board”—an image created to demonstrate a proposed ad design—with Mannion’s permission. The comp board featured the Mannion photograph in black and white, with Garnett’s head cropped out, and the words “Iced Out” superimposed on top of the photograph. The agency ultimately used a photograph that resembled the comp board on an advertisement without Mannion’s permission. The advertisement also centered around a portrait photograph of an African-American man in a baggy white T-shirt, jewelry and chains, photographed bottom-up, with a focus on the subject’s hands.

The question in the case was whether there was substantial similarity between the protected elements of the Mannion photograph and the Coors advertisement to constitute copyright infringement. Thus, the court first had to determine the protectable elementsof the Mannion photograph, i.e., the elements that make the Mannion photograph an original, creative expression under copyright law.

After analyzing the photograph the court held that the Mannion photograph had several protectable elements. Here’s how the court examined the Mannion photograph:

Timing:

• The court noted that a photographer’s choice and artistic ability to capture a photograph at the right time and place is a protectable element. Though the court mostly focused on the other protectable elements of the Mannion photograph, it did recognize that for unplanned compositions or details in the photograph, Mannion made the creative decision at the time of the shoot to capture those exact moments and details of Kevin Garnett’s pose.

Rendition:

• The court noted Mannion’s relatively unusual angle—looking up at Garnett so that he appeared to be “towering up above earth”—and distinctive lighting coming from the left side showed originality in the photograph’s rendition.

Creation of the Subject:

• The court stated that a photograph is original to the extent that the photographer created the scene or subject to be photographed: labeled as originality in the “creation of the subject.” The composition (posing Garnett against the sky), Mannion’s instructions for Garnett to wear simple clothing with as much jewelry as possible, and Mannion’s instructions for Garnett to look relaxed counted towards originality in the creation of the subject.
• The court did recognize that some elements in isolation were arguably not protectable under copyright law—namely the cloudy sky, Garnett’s hands, face, and torso, his white T-shirt, and his specific jewelry. Nonetheless, their existence in the arrangement in the photograph as a whole contributed to Mannion’s originality.

Given the originality in the Mannion photograph’s rendition, timing and creation of the subject, the court held that the image was protectable under copyright law. When evaluating the protectable elements of a photograph in a photography copyright infringement case, photographers should keep in mind that the creative, original elements in a photograph can be found in the photographer’s rendition, timing, and creation of the subject and/or in a combination of such elements.

Determining Whether a Photograph Implicates the Public Display Right When Made Available on the Internet: Perfect 10 and the Server Test

Apart from protecting against unauthorized reproductions of a photograph, the Copyright Act protects against unauthorized public display of the work. But courts have struggled to answer whether a third-party website violates the public display right when it embeds images from another website. Embedding refers to the process of using HTML instructions to render an image from another website (where the content is actually stored on the source website).

In one well-known photography copyright case—Perfect 10 v. Amazon—the Ninth Circuit considered whether the embedding of certain “thumbnail” images used in Google’s Images Search violated a publisher’s display right. In rejecting the copyright owner’s challenge, the court explained that Google was not publicly displaying Perfect 10’s images because Google’s computers do not store the photographs. Rather, the court held that Google simply provide HTML instructions that “direct a user’s browser to a website publisher’s computer that stores the full size photograph.” The court reasoned that providing instructions was not the equivalent of displaying a copy of the image, and rejected Perfect 10’s claim of public display right infringement. The test, whether Google stored the images on its servers, became known as the “server test.” Since the image was not stored on Google’s server, the court found that Google did not violate Perfect 10’s public display right.

Although the server test remains Ninth Circuit law, district courts in the Second Circuit have rejected the rule, claiming it goes against the text and legislative history of the Copyright Act, as stated in Goldman v. Breitbart News and McGucken v. Newsweek. Thus, the practice of embedding images is somewhat of a legal gray zone. A court could very well find that embedding constitutes unauthorized display under the Copyright Act. After all, if a full-size image is displayed without authorization, why does it matter—for purposes of analyzing the display right—whether a copy resides on a server?

In response to the uncertainty, Instagram developed a limited feature that allows photographers to select whether they give permission for others to embed their photographs. Other companies may also follow suit. Even with these new, limited features, since embedding potentially implicates the copyright owner’s display right, a user wishing to embed an image on their website should simply ask for permission as a cautionary measure and photographers now may have some options to restrict embedding of their images on third-party websites.

Illustrating Transformative Use (Or Lack Thereof) in Fair Use Photography Cases

Copyright law permits certain types of uses of copyrighted works to take place without the copyright owner’s consent and without compensating the copyright owner for the use. A photograph may be used without the copyright owner’s permission if the use qualifies as fair use. In deciding whether a use constitutes fair use, courts will consider four statutory factors:

1. the purpose and character of the use;
2. the nature of the copyrighted work;
3.  the amount and substantiality of the portion used; and
4.  the effect of the use on the potential market for the copyrighted work.

Courts consider each individual factor case-by-case, and then determine whether a use constitutes fair use through a holistic balancing of all four factors. Accordingly, fair use is a highly fact-specific test, so once again, a result in one case does not necessarily mean a similar case will come out the same way. The following photography copyright cases illustrate how fair use has been applied to photography in some instances.

When courts examine photograph-based fair use cases, they tend to spend a lot of time focusing on the first factor, where courts often ask whether the new use constitutes a transformative use. The transformative use inquiry focuses on whether the photograph was used in a way that alters the original work with a “new expression, meaning, or message…such that the plaintiff’s work is transformed into a new creation.” Perfect 10, Inc. v. Amazon.com, Inc. Courts have interpreted (correctly or not) a wide range of uses as “transformative,” from social commentary to providing access to information. For instance:

• In Blanch v. Koons, the Second Circuit found that artist Jeff Koons’ unauthorized use of Andrea Blanch’s fashion magazine photograph in a painting was transformative due to its use as “fodder for [Koons’] commentary on the social and aesthetic consequences of mass media.” By changing the photograph’s colors, background, medium, size, details, and the purpose and meaning of the photograph, as part of a painting for a German art gallery, the court found that Koons gave the Blanch photograph a new meaning and message. After finding that the Koons photograph was transformative, the court went on to find for Koons on the other fair use factors.
• In Perfect 10 v. Amazon, the Ninth Circuit found that Google’s use of entire images for Google Image Search was transformative, as the search engine “transform[ed] the image into a pointer directing a user to a source of information.” The court held that the new use of the image as a vehicle for access to information, combined with the social benefit of Google Images Search, outweighed the fact that both images were used for commercial purposes.
• In Cariou v. Prince, the Second Circuit held that appropriation artist Richard Prince’s use of Patrick Cariou’s photographs was transformative under the first fair use factor. In the case, Prince used Cariou’s portrait photographs of Jamaican Rastafarians to create a multi-work collage called Canal Zone. Using the original photographs to various degrees, Prince “altered the photographs . . . by among other things painting ‘lozenges’ over the[] subjects facial features and using only portions of some of the image.” The court determined that most of the Canal Zone series (all but five pieces) were transformative and constituted fair use. They reasoned that the images “have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinctive from Cariou’s.” Although Cariou remains law in the Second Circuit, the decision was criticized by commentators and other courts, and the Second Circuit later qualified the case by stating that it was a “high-water mark of our court’s recognition of transformative work” in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith.

On the other end of the spectrum, the following cases illustrate times where a court rejected an unauthorized user’s transformative use arguments and found against fair use:

• In Monge v. Maya Magazines, the Ninth Circuit ruled that a magazine’s use of secret, unpublished celebrity wedding photographs was not a transformative use. In the case, a Spanish-language celebrity gossip magazine published photographs of a secret wedding without the copyright owner’s permission. The court noted that the magazine fully reproduced the photographs as the focal point of their story, and merely added some written commentary alongside the photographs. The court held that the photograph was “minimally transformative” at best. The court reasoned that Maya did not incorporate the photos as part of a broader news report and left the “inherent character of the images unchanged” despite sprinkling in commentary. The fact that the photos were newsworthy did not in of itself lead to a transformation under the first factor of the fair use test. Though the court found that the magazine’s use might have been newsworthy, given the minimal transformation and commercial unauthorized use of the photographs, the court found that “the first factor is at best neutral,” went on to find for Monge on the other three factors, and ultimately rejected Maya’s fair use defense.
• In Brammer v. Violent Hues Prods., LLC, the Fourth Circuit held that Violent Hues’ unauthorized use of a stock image of D.C.’s Adams Morgan neighborhood for their film festival website was not a transformative use. Violent Hues used Brammer’s image as part of a “Plan Your Visit” page for the Northern Virginia Film and Music Festival website. The court rejected defendant’s argument that the use of the photograph was transformative because it provided festival attendees with “information” regarding Adams Morgan. The court found that the use on the website does not create a new function or meaning that expands human thought and emphasized that a ruling to the contrary would mean that “virtually all illustrative uses of photography would qualify as transformative.” The lack of a new purpose, plus the commercial use of both photographs, led the court to reject a transformative use argument, and ultimately in weighing the first factor against a fair use finding.
• In VHT v. Zillow, the Ninth Circuit found that the unauthorized use of home interior photographs found on Zillow was not a transformative use. The case concerned Zillow’s use of VHT’s photographs for Zillow’s “Digs” feature, which allows users to search home interiors based on user-inputted criteria for home improvement inspiration. Zillow argued that their use of the photographs was transformative as a search engine under Perfect 10 v. Amazon. The court rejected Zillow’s argument, stating that Google Images search “crawls” the web and directs users to the original source of the photograph via a thumbnail, whereas Zillow Digs is a “closed-universe” search engine that displays the entire image without attribution to its source. Furthermore, the court stated that “any transformation by Zillow pales in comparison to the uses upheld in prior search engine cases,” and Zillow’s use does not further the Copyright Act’s goal of promoting socially valuable new uses such as criticism, comment, news reporting, scholarship or research. Thus, Zillow’s use of VHT’s photographs was not transformative.  

Overall, the fair use test is a continuum that photographers can better understand by looking at past photography copyright cases. Although there are some uses that tend to lean toward a finding of fair use (e.g. parody), fair use issues are often decided on case-specific facts. The cases mentioned above can be used an overarching reference, to illustrate how the fair use factors might apply in a particular context.

Clarifying Transformative Use in the Fair Use Exception: Andy Warhol Foundation v. Goldsmith

The Andy Warhol Foundation (AWF) v. Goldsmith was undoubtedly one of the biggest photography copyright cases, as the U.S. Supreme Court clarified the muddy “transformative use” doctrine, putting it back into its proper place as a subfactor to be analyzed under the first fair use factor.

The background is as follows: In 1981, photographer Lynn Goldsmith licensed her portrait of the musician Prince to Vanity Fair as an artist reference. Vanity Fair then commissioned Andy Warhol to create a piece based on the photograph. However, without Goldsmith’s knowledge, Warhol also created the “Prince Series,” a series of silkscreen prints, using Goldsmith’s photograph. Goldsmith learned about the series in 2016, shortly after Prince’s death. Goldsmith then alerted AWF—the Prince Series’ copyright owner—alleging copyright infringement, and AWF sued Goldsmith in response, asking the court for a declaration of non-infringement based on fair use.

The district court ruled in favor of AWF on the fair use issue, relying largely on their conclusion that Warhol’s use of Goldsmith’s photograph was transformative because The Prince Series displays the musician as an “iconic, larger-than-life figure,” the court explained, whereas Goldsmith’s photograph portrays Prince as a “vulnerable human being.” Goldsmith appealed.

On appeal, the Second Circuit stated that the trial court misapplied the “transformative use” test. The court stressed that aesthetic changes to a protected work cannot by themselves constitute a transformative purpose weighing in favor of fair use. Rather, the secondary work must “reasonably be perceived as embodying an entirely distinct artistic purpose.” According to the court, the secondary work must also be more than an imposition of a new artist’s style on the original work, where the secondary work remains retaining the essential elements of, its source material.

AWF challenged the Second Circuit’s application of the transformative test in its petition for Supreme Court review. The question presented by AWF was: “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as the Second Circuit has held)?”

In May 2023, the Supreme Court held in a 7-2 opinion written by Justice Sonya Sotomayor, that the purpose and character of the AWF’s use of Goldsmith’s photograph in the licensed “Orange Prince” silkscreen to Condé Nast did not favor a fair use defense under the first fair use factor. The case is impactful for both photographers and the creative community as a whole as the high court had not fully discussed the application of the transformative use test to a traditional copyrighted work since Campbell v. Acuff Rose was decided over 25 years ago. We explain the takeaways from this important decision in a two part blog series (Part I and Part II), but the decision level-set an increasingly expansive fair use provision by making some crucial points:

• The Court reaffirmed a critical tenet of the fair use doctrine—that whether a use is transformative not only doesn’t control a fair use determination, but that it also doesn’t control a factor one analysis.
• The decision also reiterated that fair use is an objective inquiry, and that different meaning and message in assessing transformative use “cannot turn merely on the stated of perceived intent of the artist of the meaning or impression that a critic—for that matter, a judge—draws from the work.”
• Additionally, the Court explained that the degree of transformation required to meet the threshold of transformativeness under the fair use factor cannot be so broad that it encroaches upon the derivative right under Section 106 of the Copyright Act.

Through the lenses of various courts in some major copyright cases, photographers can learn a lot about the scope of copyright protections for the images they work hard to create. From the Supreme Court’s firm acceptance that photographers are the creative directors and authors of creating images, it is clear that copyright law is meant to protect the creative expression that photographers display in the stories and moments that they artfully capture. However, as seen in Warhol, the scope of those protections will continue to develop and evolve. We hope this blog on photography copyright cases was useful for photographers in seeing how various courts deal with photographs under copyright law.

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