Is reproducing images of a magazine to sell the magazine copyright infringement? ROSEN v. EBAY

Copyright grants a creator of a new work of expression the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. The exclusive rights of a copyright are broad, 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 what would normally be 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.

Copyright law was written long before computers and the internet existed. In the past reproducing a copyrighted image would take hours if not days of work and specialized equipment. With computers it is a trivial task to create and infinite number of reproductions. Behavior that was once considered innocuous, prior to the digital age, is given renewed scrutiny in the context of copyright law.

ROSEN v. EBAY, INC., 2:13-cv-06801 (C.D.CA 2015) is an example of a case where the reproduction of a copyrighted image was deemed fair use.

Defendant is a website that allows users to buy and sell products. Users of Defendant’s website can post images of the items for sale. Plaintiff is a photographer that has licenced several of his photographs to appear in physical magazines. In 2013 Plaintiff sued Defendant for copyright infringement. Plaintiff claimed that Defendant violated his copyrights in several sets of photographs by: (1) hosting user generated listings for the resale of the physical magazines that displayed digital pictures of physical prints of his photographs as they originally appeared in the magazines, and (2) relying on servers maintained by a content delivery network (CDN) to facilitate the display of the digital pictures of his photographs to Defendant’s end users. Defendant claimed its use of the photographs was protected under the fair use doctrine.

The court gave an abbreviated review of the fair use factors and concluded that Defendant’s conduct qualified as a fair use. The court compared the purpose of copyright protection and the Defendants’s use of the photographs. The court found that 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. The court concluded that Defendant’s use was a fair use without addressing the issue of whether Defendant’s use was transformative.

With respect to the use of a CDN to facilitate the display of the images to end users, the court 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” without reference to the fair use factors.

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