Thank you for clarifying. You may wish to consider the Second Circuit's
analysis in Blanch v. Koons, --- F.3d --- 2006 WL 3040666 (2d Cir
October 26, 2006). In its analysis of the fourth factor, the court
looked at Plaintiff's "admissions" that she
"had never licensed any of her photographs for use in works of graphic or other visual art, that Koon's use of her photograph did not cause any harm to her career or upset any plans she had for "Silk Sandals" or any other photograph, and that the value of "Silk Sandals" did not decrease as the result of Koons's alleged infringement." In light of these admissions, it is plain that "Niagara" had no deleterious effect "upon the potential market for or value of the copyrighted work."
That, together with the Bill Graham Archives decision (use of the entire work ok even after license negotiations failed) may be persuasive reasoning.
Ray
(please note new contact information)
Raymond J. Dowd
Partner
Dunnington, Bartholow & Miller, LLP
477 Madison Avenue, 12th Floor
New York, NY 10022
Tel: (212) 682-8811
Fax: (212) 661-7769
rdowd[_at_]dunnington.com
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of jrfriedman[_at_]litproplaw.com
Sent: Tuesday, October 31, 2006 8:55 AM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: fourth fair use factor
Thank you for your response. My query was specifically about fair use, not about whether a court may find damages when the plaintiff did not suffer a monetary loss. (I am well aware of Deltak, having relied on it at trial long ago, although the court refused to entertain our argument based on it).
I also am aware that if one is relying on a fair use defense, one is conceding that one has committed infringement. The prospective plaintiff in my situation, a non-profit that lives on sponsorship and grant money, makes its works available for free on its Web site, although it specifies that users may make only personal non-commercial use of them. My client, also a non-profit, reproduced some of the works in a public-interest publication, thinking that it was all right for it to do so; and the plaintiff is claiming infringement. This almost certainly will not go to litigation, but for purposes of negotiation, I am assessing whether the use that my client made would be held to be fair use. In analyzing the facts under the fourth factor, my first thought was that since the plaintiff makes its works available for free, my client would prevail, but to make sure I was considering the whole picture, I thought I would ask whether there are cases holding that even when the plaintiff does not charge for its works, and would appear to have no intention of ever doing that.
I hope that clarifies my query.
Jessica Friedman
On Mon, 30 Oct 2006 15:20:30 -0500
"Raymond Dowd" <rdowd[_at_]dunnington.com> wrote:
>
>
> Jessica - I am not clear on the facts of your
>hypothetical. As Dr.
> Cole points out, if a hypothetical client displays
>copyrighted content
> on a website that resides on another's website (Kelly v.
>Arriba
> Soft/Perfect 10 v. Google) - that is infringement, even
>if the
> hypothetical client does not charge for it. Perfect 10
>has put the
> ability to thumbnail another's images into question.
> Napster didn't
> charge for the music, they got in trouble for getting ad
>revenues each
> time someone else infringed and for encouraging people
>to infringe. If
> your client has someone else's copyrighted works
>reproduced in full on
> their website, then they are probably in trouble. As
>John Noble points
> out, Grokster's economic advantage was even more
>attenuated. An
> example of a full reproduction in a commercial book was
>the Second
> Circuit's decision in the Bill Graham Archives case, but
>that involved
> small images in a large book. For an example of a court
>imposing
> damages where there are no profits to the infringer and
>no lost sales to
> the copyright owner, check out Deltak v. Advanced
>Systems, a case I
> discuss in Chapter 16 of my recently-published Copyright
>Litigation
> Handbook (West 2006).
>
> (please note new contact information)
>
> Raymond J. Dowd
>
> Partner
>
> Dunnington, Bartholow & Miller, LLP
>
> 477 Madison Avenue, 12th Floor
>
> New York, NY 10022
>
> Tel: (212) 682-8811
>
>Fax: (212) 661-7769
>
> rdowd[_at_]dunnington.com
>
>
>
> my new blog Copyright Litigation Blog
> http://copyrightlitigation.blogspot.com/
>
>
>
> ________________________________
>
>From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Roland Cole
> Sent: Friday, October 27, 2006 5:09 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] Re: fourth fair use factor
>
>
>
> I think the "framing" decisions in effect did this,
>although not
> explicitly -- at least the fact that the P did allow
>"free viewing" did
> not bar a finding of infringement for framing that
>content.
>
>
>
> Roland J. Cole, J.D., Ph.D.
>
> Director of Technology Policy
>
> Sagamore Institute for Policy Research
>
> 340 West Michigan, Canal Suite B
>
> INDIANAPOLIS IN 46202
>
> 317-727-8940; rollie[_at_]sipr.org; www.sipr.org
><http://www.sipr.org/>
>
>
>
>
>
> ________________________________
>
>From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Jessica R.
>Friedman
> Sent: Thursday, October 26, 2006 4:55 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] fourth fair use factor
>
> Is anyone aware of a fair-use decision in which the
>court found that the
> fourth fair-use factor favored the plaintiff even though
>the plaintiff
> did not derive any monetary compensation from permitting
>people to
> reproduce its works? That is, the plaintiff permitted
>people to
> reproduce works from its Web site, but did not charge
>for the privilege?
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Received on Wed Nov 01 2006 - 23:50:00 GMT
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