How many times have you gone to the Web to find someone else’s art to illustrate your advertiser’s display ad? And what about your news stories? How many of those are illustrated with copies of someone else’s art and a prayer to the goddess of “fair use”? Don’t answer those questions, just read this column.

Let us start with the example of illustrations used in advertising. Those are least likely to get any benefit from the fair use doctrine and are, therefore, easier to discuss.

“Urban Legends” Are Not Good Copyright Advice

The equivalent of an “urban legend,” newspaper graphics departments float the notion that changing someone else’s art is enough to avoid a copyright infringement claim. That is most emphatically not so. For example, when a sculptor created a wood carving modeled on a photograph, a court found copyright infringement because the piece was a derivative work, even though it was created in an entirely different medium. And when National Geographic Society added sound effects, music and motion to a photograph, the Supreme Court of the United States held that NGS created a derivative work and thus an infringing copy.

But there are distinctions to be made. In another case, a search engine developed by Ariba Software that scanned the Web for images and displayed the results as an index of thumbnail sketches was sued by a photographer whose work was included in the index. The thumbnails reproduced images at a lower resolution than the originals and enhanced their market, so a federal appeals court held it was a “fair use.” But where the same search engine created a “framed” link to the original image, the court ruled it was a copyright infringement. The key here is to use less than the whole or to use the work in an ephemeral way.

Minimal Uses

A medical artist lost his copyright infringement claim against an ad agency that used his artwork in the background of a television commercial. The artwork consisted of two pictures of a man sitting in a dental chair. A federal appeals court talked about “observability,” and measured the length of time that the copied work was shown and considered its prominence in the total work. The two copied pictures appeared for 10.6 seconds and 7.3 seconds respectively, and they appeared in soft focus in the background of the commercial. By contrast, the court said, an infringing copy would have been made if the original work were clearly visible with enough detail for the viewer to discern the artist’s choice of color and style. The court said the copied dental pictures were not a “featured display” in the television commercial.

Fair Use and News Uses

A fair use defense may apply to advertising, but because the purpose and character of the use is commercial, copying is less likely to be protected by the fair use defense. If it is a news use, incidental to the purpose of reporting a legitimate news event, the copying is more likely to be considered a fair use. Here is the essential part of that section of the Copyright Law:

“. . . the fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”

The mere fact that the copied work appears with or in a news story is not enough to protect it from a copyright infringement claim. If that were so, news photographers and wire services would be hard pressed to collect for the value of their work. On the other hand, the fact that a newspaper is a business that strives to earn a profit does not weigh against a fair use defense.

The trouble is that predicting the success of the fair use defense is somewhat like predicting the weather. The Supreme Court said it more elegantly in a 1994 decision: “The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. . . . Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.”

To illustrate how the four statutory factors are balanced by the courts, let’s look at two additional cases, both involving news or documentary reporting.

Court TV took a news clip owned by Los Angeles News Service (of truck driver Reginald Denny being beaten during the LA-Rodney King riots) and “transformed” it by incorporating it into the introductory montage for its show “Prime Time Justice.” The montage used a stylized “clock” design superimposed over a video background that morphed as the hands of the clock revolved. LANS’s copyrighted video appeared for a couple of seconds during a single, 360-degree sweep of the clock. This very ephemeral use was held to be a fair use, and not a derivative work.

Passport International Productions’ fair use defense was rejected in a decision reported this November by the Sixth Circuit Court of Appeals. Passport was sued by a swarm of plaintiffs who hold copyrights in various materials relating to Elvis Presley, including film of many of his TV appearances and songs that he performed. Passport produced and sold a sixteen-hour documentary about the life of Elvis, if you can imagine, an exhaustive (and exhausting?) piece of work. The Court examined the use of each work and found that excerpts of copyrighted material in The Definitive Elvis “comprise a substantial portion of Elvis’ total appearances on many of these shows. . . . almost all of Elvis’ appearance on The Steve Allen Show is contained in The Definitive Elvis. Thirty-five percent of his appearances on The Ed Sullivan Show is replayed, as well as three minutes from The 1968 Comeback Special.” Clearly the “observability” of the copied work was very high. In fact, the Court said, it seemed almost to be used for entertainment purposes as much as for documentary reporting.

In other words, the length and completeness of the use of the underlying work undercut the fair use defense. Certainly these cases are saying that small, brief or transparent or ephemeral copies of an artist’s work may not be enough to infringe on the copyright of the original work, but should the question come up in your shop, avoid the “urban legend” approach and consider whether legal advice is needed before publication.