Cropping of Photo Weighs in Favor of Fair Use​

The court granted defendant’s motion for summary judgment that its use of plaintiff’s photograph on defendant’s website constituted fair use because defendant used only a portion of plaintiff’s photo, and there was no evidence that defendant’s use had an adverse effect on the market for the photograph. “⁠[I]t is relevant that [defendant] edited the photograph by cropping approximately half of the original photo from the version it used on its website. [Defendant] used no more of the photo than was necessary to convey the photo’s factual content and effectuate [defendant’s] informational purpose. . . . [Furthermore, plaintiff] attests that he has been compensated for the photo six times, including three physical print sales and three usage licenses. At least two of these sales occurred after [defendant’s] alleged infringement began, demonstrating that [defendant’s] use did not affect the market for the photo. [Plaintiff] further testified that he currently makes no effort to market the photo. Additionally, defendant’s transformative and non-commercial use of the photo undercuts a finding of adverse effect on the photo’s market . . . . There can be no legitimate argument that [defendant] has ‘usurp[ed] the market⁠’ by providing a market substitute for the photo, especially since [defendant] only used approximately half of the photo on its website.”

Brammer v. Violent Hues Productions, LLC, 1-17-cv-01009 (VAED 2018-06-11, Order) (Claude M. Hilton)

2018-06-13T11:38:02+00:00 June 13th, 2018|Copyright, Docket Report|