Low resolution comp photos of competitors websites deemed fair use. KENNEDY v. GISH

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 industry norm prior to the digital age is given renewed scrutiny in the context of copyright law.

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 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.

Kennedy v. Gish, Sherwood & Friends, Inc., 4:13-CV-02236 (E.D.MO 2015) is an example of a case where using screenshots of websites which included copyrighted images was found to qualify as a fair use.

Plaintiff in this case is a professional photographer. Plaintiff operates websites that display his copyrighted photos. Defendant is an advertising agency. Copied took screen shots of Plaintiff’s websites which included low-resolution versions of 169 photographs. Defendant used 39 of these images in sample advertisements for internal evaluation by its client.

Plaintiff sued for Defendant alleging that the unauthorized copying was copyright infringement. Defendant responded that its actions were protected under fair use. Defendant claimed that the copying and use of low resolution images in advertising samples was a common industry practice known as “comp” use, and such use transformed the photos by resizing, cropping, placing into graphic designs and supplementing the images with text.

Defendant motioned for summary judgement and the court reviewed each of the fair use factors in turn. For the first factor, the purpose and character of the use, the court held that Defendant’s alterations of the photos were transformative because the altered photographs were put “in a new context to serve a different purpose” than the originals. This transformative use that outweighed the commercial nature of the Plaintiff’s use. The second statutory factor, the nature of the work, favored the Plaintiff because the photographs were creative. The third factor, the amount of the work used, weighed in favor of fair use because “even making an exact copy of the work
is justifiable where the purpose of the work differs from the original.” Finally for the fourth factor, the effect of the use on the potential market for the work, the court found in favor of fair use because: (1) “market harm cannot be readily inferred” where the use is transformative; and (2) there was no evidence of lost revenues because Plaintiff would offer free licenses for comp use to other advertising agencies.

Based on these findings the court held that the reproduction of Plaintiff’s works by Defendant qualified as fair use. However the court allowed the question of whether the distribution of the reproductions to Defendant’s clients constituted copyright infringement to continue to trial.

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