Are high school yearbook photos of celebrities fair use? DLUGOLECKI v. POPPEL

A creator of a new work of expression is granted a copyright to that work when it is fixed in a tangible medium. This means that when a photographer takes a picture, the photographer is automatically granted a copyright to that photograph. In the United States, a copyright can be registered to strengthen the associated rights, however registration is not required for the copyright to be granted. The owner of a copyright is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original work. If someone other than the copyright owner attempts to exercise on of these exclusive rights, that can be considered copyright infringement. A copyright owner can combat copyright infringement by filing a complaint in a Federal District court. In the complaint the copyright owner can request and injunction to stop the infringement activity and request damages for copyright infringement which has occurred.

The rights granted by copyright law do have some limits. The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Sometimes the interest that the public has in a copyrighted work out weighs the interests of a copyright owner. In these cases, a defendant in a copyright infringement lawsuit will be excused from liability. For example, behavior that would normally be considered copyright infringement can be excused with the use of the copyrighted work is deemed a fair use.

A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Fair use is a defense to copyright infringement. A copyright defendant that demonstrates to a court that their use of the copyrighted work is a fair use would not be liable for infringement.

When a court is presented with a fair use defense the court will apply a test with several factors to the facts of the case to determine whether the defendant’s use constitutes a fair use. This inquiry can often be fact specific, therefore it is useful to study prior court decisions to understand how a court will apply the fair use factors to future cases.

JOHN DLUGOLECKI, v. SETH POPPEL, et al., 2:18-CV-03905 (C.D.CA 2019) is an example of a case where the court found the use of photographs in news reports were not a fair use. This case revolves around photographs from a high school yearbook. High school year books are a popular phenomena in the United States. Yearbooks serve as an informal public record of the students at a school and contain some biographical material about each of the graduating seniors. Year books are frequently available to the public at the school library.

The plaintiff in this case is a photographer who took high school yearbook photos. Meghan Markle, the wife of Prince Harry of Great Britain, was one of the students the plaintiff photographed. When the engagement of Ms. Markle and Prince Harry was announced in 2017 several news organizations used the plaintiff’s photographs in new stories about Ms. Markle. The plaintiff sued for copyright infringement, the defendant’s claimed their use was a fair use and moved for dismissal of the complaint.

The court weighed each of the fair use factors. With respect to the purpose and character of the use, the court found that the use was slightly transformative, but not enough. Even though news reporting is specifically mentioned in the preamble to Section 107 of the Copyright Act, that does not give news agencies a free pass on copyright infringement. The commercial purpose of the use negated a clear finding that the use was transformative. With respect to the second factor, the nature of the copyrighted work, there was a small degree of creative input from the plaintiff. The third factor, the amount and substantiality of the work, the court found for the plaintiff because the photographs were not necessary to report news of Ms. Markle’s engagement. With respect to the fourth factor, the effect of the use on the potential market for or value of the work, the court found in favor of the plaintiff. Despite the fact that the plaintiff had not sought to license his photographs, there was a market for photographs of members of the royal family.

The court concluded that none of the factors clearly favored the defendant and denied the motion to dismiss.

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