Is distributing photographs of a sculpture for sale fair use? NOLAND v. JANSSEN

A copyright is a set of exclusive rights granted to the creator of an original work of expression. Copyright law protects original works of expression like books, music, movies, and photographs. A copyright owner is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original. If someone exercises one of these exclusive rights, without authorization, that can constitute copyright infringement. A copyright owner can respond to copyright infringement by filing a lawsuit to stop the infringement and get monetary damages.

The rights granted by copyright law in the United States have some limitations. One of the limitations of copyright law in the United States is known as fair use. A defendant in a copyright infringement lawsuit can claim that its use of a copyrighted work is protected by fair use and not be held liable for copyright infringement. When a court is presented with a fair use defense to a copyright infringement claim, the court analyzes four factors. Those four 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.

Understanding exactly how courts will apply the fair use doctrine can be tricky, therefore it is helpful to study court decisions.

NOLAND v. JANSSEN, 17-CV-5452 (S.D.NY 2020) is an example of a case where the distribution of the photographs of a sculpture, which was for sale, was found to be a fair use.

This case centers around a wooden sculpture, created by the Plaintiff, which resembled the façade of a log cabin called the“Log Cabin Façade”. The sculpture was purchased by Defendant in 1990. The sculpture was stained and displayed outdoors in Germany with the permission of the Plaintiff. The outdoor display led the sculpture to deteriorate. Defendant refurbished the work in 2010 in Germany by replacing the original, rotted logs with logs from the supplier that Plaintiff originally purchased from. Defendant then attempted to sell the sculpture. Defendant marketed the sculpture by providing photographs and plans relating to the original and refurbished sculpture to potential buyers. Plaintiff claimed Defendants’ distribution of photographs and plans of the sculpture constituted copyright infringement and the refurbishment and resale violated Plaintiff’s moral rights under the Visual Artists Rights Act. Defendant claimed his actions were protected by fair use and moved to dismiss Plaintiff’s case.

With the respect to the purpose and character of the use, the court found that disseminating photographs of copyrighted works to provide information to purchasers under the first sale doctrine, is transformative because the transformative purpose of reselling the work was completely different from the purpose of the original sculpture.

The nature of the work, was found to be creative, but this weighed only slightly against fair use because the use was transformative. The amount and substantiality of the portion used in relation to the copyrighted work as a whole, weighed against fair use because the images allegedly depict the whole work; however, the court found the factor has limited significance in the context of seeking a legitimate sale, as a potential buyer would likely expect to see the whole work. The effect of the use on the potential market for or value of the copyrighted work, Plaintiff admitted the distribution of the photographs positively impacted the market for the original work. The court noted that the first sale doctrine had no bearing on its fair use analysis of the market impact on the original work.

Balancing the four fair use factors the court concluded that fair use did apply and ruled in favor of the Defendant.

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