{"id":265,"date":"2017-04-28T19:49:03","date_gmt":"2017-04-28T23:49:03","guid":{"rendered":"https:\/\/ipmanagement.harnessip.com\/?p=265"},"modified":"2017-05-07T23:45:13","modified_gmt":"2017-05-08T03:45:13","slug":"fair-use-is-not-always-fair","status":"publish","type":"post","link":"https:\/\/ipmanagement.harnessip.com\/?p=265","title":{"rendered":"Fair Use is Not Always Fair"},"content":{"rendered":"

Photographer TC Reiner sued<\/a>\u00a0Watkins Institute and one of its students Ryon Nishimori for copyright infringement when\u00a0Nishimori incorporated one of Reiner’s copyrighted photographs into a mock advertisement for a classroom assignment, and saved his work on Flickr, along the way removing Reiner’s copyright notice to improve the appearance of the mock advertisement and giving rise to a DMCA claim as well.<\/p>\n

\"\"<\/a><\/p>\n

Fortunately for the school and the student, the court granted summary judgment<\/a>\u00a0that the uses were a fair use under 17 U.S.C. \u00a7107. \u00a0The Court examined each of the four factors enumerated in the statute:<\/p>\n

In evaluating the first factor, the Court considered whether the new work is transformative, and whether the use of that work is for commercial or noncommercial purposes.\u201d The Federal Circuit agreed that Watkins gave the photograph to the students so that the students could learn to create a mock advertisement, not so the students would benefit merely from absorbing the content of the photograph itself. This is a nonprofit educational purpose.<\/p>\n

In evaluating the second factor, the nature of the copyrighted work weighs slightly against finding fair use. Courts consider two aspects of the work in evaluating this factor: first, the extent to which it is a creative work enjoying broader copyright protection as opposed to a factual work requiring broader dissemination, and second, whether it is unpublished, in which case the right of first publication is implicated.<\/p>\n

In evaluating the third factor,\u00a0the amount and substantiality of the portion used in relation to the copyrighted work as a whole also weighs against finding fair use because defendants used Reiner\u2019s entire photograph.<\/p>\n

In evaluating the fourth factor, the court said that the burden of proof as to the market effect rests with the Reiner where the challenged use is of a noncommercial educational nature. \u00a0The court found a complete absence of proof of any impact on the market for the work.<\/p>\n

After weighing all the factors in the light consistent with the purpose of the fair use doctrine, the Court conclude that the school’s educational use of the photograph was fair use. \u00a0The court made a similar conclusion with respect to Nishimori’s uses. \u00a0Finally, the court found that a DMCA requires knowing or having reasonable grounds to know that removal of Reiner’s copyright notice will induce, enable, facilitate, or conceal an infringement of the federal copyright laws. \u00a0The Court said it was undisputed the Nishimori did not know or have reasonable grounds to know that removing Reiner\u2019s name, the name of the photograph, or the copyright tracking number, would induce, enable, facilitate, infringement, and thus did not violate 17 U.S.C. \u00a71202(b)(1).<\/p>\n

In the end, the fair use exception of 17 U.S.C. \u00a7107 protected the school and its student from liability for\u00a0using a copyrighted photograph in an academic assignment, but it did not save them from just over two years of litigation, and the accompanying costs. \u00a0Just because a use qualifies as a fair use, does mean you are going to be treated fairly.<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Photographer TC Reiner sued\u00a0Watkins Institute and one of its students Ryon Nishimori for copyright infringement when\u00a0Nishimori incorporated one of Reiner’s copyrighted photographs into a mock advertisement for a classroom assignment, and saved his work on Flickr, along the way removing … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,14],"tags":[],"class_list":["post-265","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use"],"_links":{"self":[{"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/265","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=265"}],"version-history":[{"count":5,"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/265\/revisions"}],"predecessor-version":[{"id":273,"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/265\/revisions\/273"}],"wp:attachment":[{"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=265"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=265"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ipmanagement.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=265"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}