Free pictures on the internet still come with copyright consequences. PHILPOT v. WOS

A copyright is a granted to the creator of new expressive work when the work is created. Copyright law grants the creator of a new work of expression the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

The purpose of copyright law is to advance art and the useful sciences. For that reason there are limits to the protections granted by copyright law. Fair use is one important limit to the rights granted by copyright law. Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Examples of fair use include the use of a copyrighted work for the purpose of commentary, criticism, parody, news reporting, research, scholarship and search engines. When a court is presented with a fair use defense, four factors will be reviewed to guide the court in making a determination. 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 used; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Copyright law was written long before the internet was available to the majority of the world. Therefore the internet presents courts with novel questions with respect to copyright infringement and fair use. One such question is, if a copyright owner uploads their copyrighted work to the internet and tells the world the copyrighted work may be used for free, can the copyright owner then claim copyright infringement?

A case which deals with the issue of photographs on the internet available for free is PHILPOT v. WOS, Inc., 1:18-CV-00339 (W.D.TX 2019). The plaintiff in this case is Larry Philpot, a freelance photographer. The plaintiffs takes photographs at music concerts, sometimes the plaintiff is given free tickets, food, and drinks, but he never gets paid for taking photograph. The plaintiff uploads his photographs to a website. His photographs can be downloaded by other people for free, subject to a Creative Commons attribution license that requires users to credit him and/or his personal website.

The defendant is a small media company, operates a website focused on country music. The defendant published two articles on its website using two of of the plaintiff’s concert photographs. The photographs featured musicians discussed in the articles. Both photographs were attributed to the website from which the photographs were downloaded and one credited the plaintiff by his username. The plaintiff sent the defendant a cease-and-desist letter concerning the photograph that did not credit him at all. In response, the defendant added username to the photograph. The plaintiff then filed a copyright infringement action against the defendant for its use of the photographs. The defendant filed a motion for summary judgment on the basis that its use was a fair use.

The motion for summary judgement presented the court with the question of whether the use of photographs available for free under a Creative Commons attribution license in connection with articles about musicians constitutes fair use. The court sided with the plaintiff and denied the motion for summary judgement. The court reviewed each of the four fair use factors in its ruling.

On the issue of whether the defendant’s use of the plaintiff’s photographs was transformative commentary, the court found that a jury could go either way. With respect to the first factor, the purpose and character of the use, the court found the use to be commercial because the photographs were used to generate advertising revenue based on page views. The second factor, the nature of the copyrighted work, also favored the plaintiff because the photographs reflect creative judgments about things like angle, framing, and timing. On the third factor, the amount and substantiality of the work used, the court found that this weighed in favor of the plaintiff because the entire photograph was used. With respect to the fourth factor, the effect of the use on the potential market for or value of the work, the court found that normally this factor would weigh in favor of the plaintiff, but because the photograph was available for free there was no actual or potential market for the photographs. However, the weight of the fourth factor was not so great that a reasonable jury would find fair use. Given all these factors the court found that it was premature to grant summary judgement.

It is important to note that the court’s ruling does not completely close the door on a finding of fair use at trial, just that the evidence did not favor the defendant so greatly that summary judgement was appropriate.

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