Court rules use of a copyrighted photograph in a blog article fair use. CLARK v. TRANSPORTATION ALTERNATIVES

A copyright is a set of exclusive right granted to the creator of a new expressive work or art. When an artist paints a picture, takes a photograph or creates art in some other tangible medium, the artist is granted a copyright to their creation. A copyright grants its owner the exclusive right to reproduce, distribute, display, perform, transmit or make derivative works based on the original work. If someone other than the the owner of copyright attempts to exercise one of these exclusive rights, that can be considered copyright infringement. A copyright owner can file a lawsuit to stop copyright infringement with an injunction as well as get monetary damages for copyright infringement which has occurred.

Copyright law in the United States grants the owner of a copyright the ability to control how a copyrighted work is used, however there are some limits to a copyright owner’s rights. The purpose of copyright law is to promote creativity and advance society, therefore copyright law will excuse activity that would be normally considered copyright infringement in some circumstances. A defendant will not be liable for copyright infringement if the defendant’s use of a copyrighted work is considered a fair use. Fair use generally falls into two categories, (1) commentary and criticism, or (2) parody. Fair use is a defense to an allegation of copyright infringement that must be plead by the defendant.

When a court is presented with a fair use defense to copyright infringement, the court will review several factors to determine if the use qualifies as a fair use. Those factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market for the copyrighted work. How a court will weigh each of these factors is fact specific and open to interpretation, therefore it is useful to review court cases to learn how courts have interpreted fair use in the past.

An example of a court case that involves the fair use of a copyrighted work for the purpose of criticism is Clark v. Transportation Alternatives, Inc., 18-9985 (S.D.N.Y. 2019) The plaintiff in this case is Dennis Clark, a photographer who owns a copyrighted photograph depicting a dockless bicycle parked at the edge of a sidewalk. The plaintiffs photograph was featured in a major newspaper article under the headline: “Dockless bikes are already clogging NYC sidewalks.” The defendant is Transportation Alternatives, a nonprofit transit advocacy organization. The defendant runs a blog that features articles about bicycles in New York City. The defendant used a screenshot of the newspaper article in a post on its blog. The screen shot was cropped to show the newspaper article’s headline, author byline, plaintiff’s photograph and photographer credit. In the blog post, the defendant commented that plaintiff’s photograph actually refutes the newspaper article’s main argument because the photograph shows a dockless bicycle that “appears to be parked rather considerately.” The plaintiff sued the defendant for copyright infringement of his photograph. The defendant filed a motion to dismiss on the grounds that its use of the plaintiff’s photograph was a fair use.

The court sided with the defendant and granted the motion to dismiss. In making its determination, the court reviewed the four fair use factors. On factor one, the court found that the use was not commercial because the defendant was a not for profit organization and that using the photograph to critique the newspaper article, instead of the photo itself, allowed the use to be considered transformative. On factor two the court found that the picture was more creative than factual, but did not find that this weighed against a finding of fair use. On factor three the court found using the entirety of a copyrighted work normally weighs against a finding of fair use, but in this case using the whole copyrighted work was necessary for the defendant to critique the newspaper article. On factor four the court found that the defendant’s use of the photograph did not compete with the plaintiff’s market for photographs. Weighing each of the factors the court determined that the defendant’s use of the plaintiff’s photograph was a fair use.

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