Communication Law Case Study

This case is about a potential copyright violation through the use of photographs previously copyrighted with the international agency who supplied the photos for the purpose of a magazine article seven years ago, and which is now being used in an educational setting by the American co-owner of the original copyright. The magazine article was never published, but now the photos and an abstract of the article is being used by the copyright co-owner as a teaching tool for a photojournalism class website. Since the original copyright was co-owned by the American photojournalist, and especially because the photos are now being used in an educational setting, I believe that there would be no protection of these photos in the courts, and that it is safely considered "fair use."

Case Background

Seven years ago, an American professional photojournalist produced a multiple photograph layout (under a cooperative agreement with a British news photo archive service) for an international affairs story. The resulting mock-up of the feature photo-article for an American magazine was submitted, but the feature was never run and the mock-up was returned to the photojournalist. The copyright notification included with the submission was, "Copyright 1995, by Sharon Wilson and IPA (International Photographic Archives). All Rights Reserved," but an actual copyright was never filed, and Ms. Wilson was under the impression that all the photographs were in the public domain.

Now, seven years later, Ms. Wilson is teaching photojournalism courses at a local university, and in preparation of the course-related web site for the class, she abstracts from the feature article she had done previously and publishes it, including some of the archive photos, onto the course web site.

What happens if IPA accuses her of infringing on the copyright?

Case Argument

Ms. Wilson's legal position in this case is based on her co-ownership of the original copyright, the fact that the photographs were originally in the public domain (it is assumed), there's only been a partial use of the original photographs, and they are being used in an educational setting. In my opinion, there should be no liability whatsoever in her use of these IPA supplied photographs for the course website. If IPA ever attempted to file a copyright violation action against her in the American courts, they would surely lose.

The fact that the copyright was never filed is irrelevant. An actual filing of the copyright is no longer needed for copyright protection. It is good to post notice of the copyright, but even that is not required. So definitely this is a copyright-protected work, and the copyright would remain in effect (unless transferred) for 70 years after the last surviving partner dies. There is no controversy regarding if the copyright is in effect; it definitely is, and it definitely is a protected work.

The accepted truth that this is copyrighted material does not change the fact that in this particular case that material in question (the photographs) is not protected, though.

Although the article was not exactly a joint effort, since Ms. Wilson is the one who did all the work, she still included IPA when she gave notice of the copyright. "The authors of a joint work are considered as being the co-owners of the copyright, unless there is an agreement to the contrary. All of the authors of the work must intend that their contributions be combined into a single work, although is not necessary that the contributions of all the authors be equal in value or effort. One of the authors can use the entire work as they please without getting the permission of the other authors" (home.att.net/~jbaugher5/copyright.htm). Ms. Wilson has the right to use the work as she sees fit, in other words. This alone would protect her use of the work on the website, but she has other backing criteria also that supports her use of it.

It's not specified how old the photos are that IPA gave Ms. Wilson, but since she assumed they were in the public domain it's safe to say that they were probably old photos. "Generally, anything published before 1923 can be considered as being in the public domain, and numerous works published after that time are also in the public domain because their copyrights have expired" (home.att.net/~jbaugher5/copyright.htm). If the copyright has not expired, then permission would have needed to have been obtained prior to archiving by the IPA.

The "fair use" principal says that copying done for the purpose of teaching, criticizing, reporting on news or satirizing is acceptable, and the work would not be protected from that type of use. Since the photographs are being used in Ms. Wilson's case for the purpose of an educational website for her students, this most certainly qualifies for the "fair use" principal and shows no infringment on the original copyright with IPA.

Ms. Wilson's use of the photos is further supported by the "no reduction in market" principal, since the educational website does not affect the marketability of the photographs in general, and especially since the original photojournalism piece was never published in the first place.

Case Law

The "fair use" clause states"...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright," from The U.S. Copyright Act, 17 U.S.C. §§ 101 - 810, § 107. Limitations on exclusive rights: Fair use.

Also, in the Sony v. Universal Studios decision it states, "Even when an entire copyrighted work was [used], ... the District Court regarded the copying as fair use 'because there is no accompanying reduction in the market for the plaintiff's original work,'" from Sony Corp. v. Universal City Studios 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984). In this case, not only would the use of the photos NOT cause a "reduction in the market" it would probably PROMOTE the demand for the photos, since interest could be generated and students may wish to invest in their own copies.

"Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good" (englishhistory.net/tudor/art.html). In our case, the use of the photographs from the original photojournalism article does not impede creativity in the formation of such articles in the future, and in fact may serve the opposite position of fostering a desire to create such types of work by the students reached though the course.

In Princeton University Press v. Michigan Document Services, Inc (1996) it was stated, "We take it that this factor, 'the effect of the use upon the potential market for or value of the copyrighted work," is at least primus inter pares, figuratively speaking, and we shall turn to it first'" (bitlaw.com/source/cases/copyright/pup.html#II). In our case, since the original article was never published, there is no affect on the marketability of the original copyrighted work. Additionally, it stated, "...the copying at issue here would be considered 'nonprofit educational' if done by the students or professors themselves," which in this case is the case.

Another factor important in deciding "fair use" is the amount of the work taken for the abstract. "...The amount and substantiality of the portion used in relation to the copyrighted work as a whole." Generally speaking, at least, "the larger the volume (or the greater the importance) of what is taken, the greater the affront to the interests of the copyright owner, and the less likely that a taking will qualify as a fair use, " (Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1122 (1990). In our case it is accepted that only a portion of the original photojournalism article was used in the creation of the educational website by Ms. Wilson. She was not merely reposting the original work in its entirety.

In Twentieth Century Music Corp. v. Aiken (1975) it stated, "The public has the right to make fair use of a copyrighted work and to exercise that right without requesting permission from, or paying any fee to, the copyright holder. The essence of copyright is the promotion of learning... ." Obviously in this situation, "learning" is the primary objective for the use of the copyrighted materials and should allow for the use of the photographs in this educational setting.

Case References

http://uscode.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html

http://www.eff.org/legal/cases/sony_v_universal_decision.html

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

http://www.dwt.com/practc/int_prop/iptech_clients.htm

http://englishhistory.net/tudor/art.html

http://www.vraweb.org/computator/computator.html

http://www.bitlaw.com/source/cases/copyright/

http://www.bitlaw.com/source/cases/copyright/pup.html#II