Re: fair use for photographers

On Tue, Mar 21, 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 03/17/2000, Alfred C. Frawley <afrawley[_at_]preti.com> wrote:
> >
> > Is anyone aware of any authority to support the ability of a commercial
> > photographer to include in their portfolio (not for sale) prints taken
> > when they were an employee (thus, a "work for hire")?
>
> It is important to remember that copyright in a work is separate from
> the issue of ownership of a particular copy (i.e., a print). If the
> photographer is the lawful owner of a particular print of the
> photograph, then under the first sale doctrine, the photographer can
> publicly display (and even sell) that particular print. There is no
> copyright violation unless and until the photographer makes another
> copy (print) of the photograph, which is a reproduction.
>
> So, the first question is: where did these prints come from? At the
> time the photographer took the photograph and delivered it to the
> employer, did the photographer make an additional print of the
> photograph without permission? If so, there was an unauthorized
> reproduction, but it might be excused, either because there is implied
> permission because of custom in the industry, or by fair use. But if
> the employer knew that the photographer kept a print and either
> expressly or impliedly consented to that ownership, then the
> photographer is perfectly within his or her rights to include that
> print in a portfolio.

If there are no copyright ownership issues (i.e., a way for the photographer to contest work for hire), then there seems to be two situations that depend upon whether the photographer owns a legitimate copy of the photo.

If the photographer owns a legitimate copy, then using the photo in personal portfolios to privately market himself violates no copyrights in the photo. In other words, there is no infringement because no copying and no public displaying (the copyright right owner does own the right to display the photo, but only publicly and subject to the exceptions under sec. 110, none of which seem to apply here (note: the public display right is not exhausted by first sale)). If it does constitute a public display, then the photographer must argue fair use which should be available under these facts.

If the photographer must make a copy without consent, then he infringes the copy right copyright (in addition to, possibly, the public display right) and must then argue fair use, which again should be available.

If the photographer loses on the fair use, then he can argue the contract-style defenses -- implied license, etc. Either way, the probabilities are that the photographer's use in the hypo will be safe.

Gregory Powell
(415) 845-3689
greg.powell[_at_]mindspring.com Received on Thu Mar 23 2000 - 05:39:03 GMT