Re: fair use for photographers

On Thu, Mar 23, 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 03/22/2000, Gregory Powell <greg.powell[_at_]mindspring.com> wrote, in part:
> >
> > (note: the public display right is not exhausted by first sale)
>
> In this context, that statement is incorrect. Section 109(c) states:
> "Notwithstanding the provisions of section 106(5) [the public display
> right], the owner of a particular copy lawfully made under this title
> ... is entitled, without the authority of the copyright owner, to
> display that copy publicly ... to viewers present at the place where
> the copy is located."
>
> The only part of the public display right that is not exhausted by
> the first sale doctrine is the right to display the work publicly to
> viewers who are not physically present, i.e., the right to transmit
> an image of the work.
>
> > 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.
>
> I agree, but I think it should be analyzed in the other order. If one
> of the five exclusive rights has been exercised, the next question is
> whether the use has been expressly or implied authorized. Only if you
> find there has been an unauthorized use do you need to analyze whether
> it is a fair use.

Good point. The "viewers physically present" aspect of the public display right is exhausted by first sale. However, this seems on balance to be a limited qualification (though important in this hypo, and valuable) to the copyright owner's public display right. Thus, the unqualified statement that the public display right is exhausted by first sale may be misleading unless tied to the facts of a particular hypo.

For example, suppose in this case the prospective employer after seeing the portfolio in person later requests a fax or electronic transmission for review. Here, the "viewers physically present" exception would presumably not apply, and the photographer may have violated the public display right (unless the use is not "public" within the meaning of sec. 101 or is otherwise a fair use) (and, of course, this may trench the reproduction right). This situation seems indicative of the potential narrowness of the first sale "public display " carve out. Thus, a photographer advised that he has a "public display" right to show a particular copy to a physically present audience should be told that his "public display" right may not reach a fax (or a post to a resume web site). But good thing for fair use.

As for the order of analysis, I think it is largely driven by the facts. Authorization may be sometimes easier to argue than fair use, but sometimes not.

Gregory Powell
(415) 845-3689
greg.powell[_at_]mindspring.com Received on Sat Mar 25 2000 - 03:35:05 GMT