Is it copyright infringement to display an image of a copyrighted photograph to sell the photograph?

The copyright law of the United States as it is known today was adopted in 1976. The internet was in its infancy as a research network in 1976, accessible only to a select few academics. It is no surprise that the internet created new issues which the 1976 copyright law was ill suited to deal with. The Congress of the United States has adopted amendments to the 1976 copyright law in an attempt to deal with some of the ambiguities in the law created by the internet. Despite the best efforts of law makers to create clear and concise laws, many ambiguities still exist regarding whether or not some activities, when performed on the internet, constitute copyright infringement. When there is an ambiguity in the law, it is up to judges in the courts to craft rules to dispel the ambiguity.

A topic that frequently requires a court to deal with copyright laws and ambiguities created in the internet is the doctrine of fair usu. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.

The copyright law doctrine of fair use was the main issue in Rosen v. eBay, Inc., No. 2:13-cv-06801-MWF-E (C.D. Cal. Jan. 16, 2015). In that case a photographer accused an internet market place website of copyright infringement.

The plaintiff, Rosen, took photographs and licensed those photographs to be used in various magazines. The defendant, eBay, is an internet marketplace that brokers deals between buyers and sellers of goods. Some sellers used eBay to sell physical magazines that included Rosen’s photographs. The sellers created listings on eBay and uploaded images of the magazines to eBay, to illustrate what was for sale. The pictures on the listings included Rosen’s photographs. Rosen sued eBay alleging copyright infringement. Rosen claimed that the user created listings which included images containing his photographs and the content distribution network which eBay uses to display the user created listings infringed on Rosen’s copyright to his photographs. EBay claimed that the display of images which contained Rosen’s copyright images were fair use and not copyright infringement.

The reason this is a notable case is that if this were a sale of used magazines, Rosen would not have a claim for copyright infringement. In a used bookstore a seller could show the buyer the physical object and the creation of images of the magazine would be unnecessary. But on the internet the only way that a seller can show a buyer the item for sale, an image of the item is necessary.

The court held that eBay’s use of the images was fair use.

The court concluded that “copies made of a magazine containing depictions of a copyrighted work, for the purpose of selling that magazine under the first sale doctrine, do not violate the Copyright Act under the fair use doctrine.” In reaching its conclusion that the digital display of the works was fair use, the court found that “looking holistically at the purpose of copyright protection and the use to which the photographs are being put,” the copies in question clearly did not displace the market for the original work, were used for a fundamentally different purpose than the original photographs, and promoted the development of “a robust legal secondary market.” Regarding the content distribution network, the court did not go into a detailed analysis of the factors surrounding fair use, but found that such distribution is “an inevitable and necessary part of using the internet, and ultimately a trivial activity that falls within the protections of the fair use doctrine.”

The internet adds a new wrinkle to copyright law. Activities that seem innocent may be considered copyright infringement because the copyright law does not specifically deal with those activities. If you have questions about copyright law it is best to contact an experienced copyright attorney to help you navigate the ambiguities.