IP Law Daily Publisher successful in asserting fair use defense in lawsuit over aerial photo
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Wednesday, December 16, 2020

Publisher successful in asserting fair use defense in lawsuit over aerial photo

By Wolters Kluwer Editorial Staff

District court finds that the market for an aerial image of a high school construction site is limited and favors a finding of "fair use" in copyright litigation.

An amateur photographer who took an aerial photograph of a construction site in order to prove that the site was riddled with sinkholes did not succeed in his copyright suit against Kingsport Publishing Corporation (Kingsport). The photographer, Brian Castle, sued Kingsport after the publishing company used his photograph in an online article about the debate surrounding a local construction site. The federal district court in Greeneville, Tennessee, granted Kingsport’s motion to dismiss the lawsuit after they defended the use of the photograph under the "fair use" doctrine. The court’s analysis found that the four fair use factors favored the finding of non-infringement (Castle v. Kingsport Publishing Corp., December 14, 2020, Corker, C.).

Drone image. In 2018, an amateur photographer captured an image of the construction site of a new high school in Sullivan County, Tennessee. That photograph was marked with yellow descriptive text and presented to a school board member and distributed to the crowd in attendance at an August 1, 2018, meeting of the board of education. The purpose of the meeting was to discuss the issue of potential sink holes at the site of the proposed high school. The drone image was presented to serve as proof that the high school was being built over sinkholes, though the source of the image was not identified at the meeting. An enlarged copy of the photograph was made public and many were convinced that the image showed evidence of sinkholes at the site. In contrast, the geotechnical engineer for the project stated that the geologic formations in the photograph were not sinkholes but were the result of blasting operations. After the meeting, the photographer sought to license this image, but it was never licensed nor did he make any money from the photograph.

On August 8, 2018, Kingsport published a news article about the public debate over sinkholes at the proposed school site. Accompanying the article was the photograph that had been distributed at the board of education meeting. The article addressed the photograph and debunked the speculation surrounding the sinkholes using the testimony of the engineer that the purported sinkholes were actually pits formed by blasting rock. Kingsport received about $15.20 from indirect advertisements based on web traffic to the article.

Motion for summary judgment. The amateur photographer sued Kingsport under Section 501 of the Copyright Act. He claimed that the photograph, which he owned and registered, was reproduced without authorization and that he would have charged $4,000 to $5,000 to license the photograph, despite having never sold a photograph before.

Kingsport filed a motion for summary judgment and the amateur photographer filed a motion for partial summary judgment. Kingsport claimed that the use of the photograph was "fair and impliedly licensed" and that the photographer had "widely, and intentionally, published the photograph at issue here before ever attempting to obtain a fee for it." The photographer asserted that the use of the image was not "fair use" because the newspaper used the photograph for the same purpose for which it was created.

Fair use analysis. The Copyright Act requires a plaintiff to show the defendant violated at least one of the exclusive rights granted to the copyright holder. The photographer contended that Kingsport violated his right to display the photograph exclusively by reproducing it in the article covering the sinkhole controversy at the school board meeting. However, Kingsport contended that there was no liability because the use of the image was covered by the "fair use" doctrine.

Fair use is a statutory exception to copyright infringement and allows for "fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research." The court examines the four statutory factors on a case by case basis.

Purpose and character of the use.Kingsport asserted that the news commentary about the controversy materially transformed the nature and meaning of the photograph, and that the purpose was to report that the image did not depict sinkholes. However, the photographer claimed that the use was not transformative and that the image was used merely to illustrate a descriptive news story about whether the holes in the ground at the construction site were geographic sinkholes or man-made holes. The court found that Kingsport republished the photograph while presenting a contrary view of the meaning and cause of the pits in the drone image. This approach brought new meaning to the photograph and presented a rebuttal to the theory presented at the school board meeting. This factor weighed in favor of Kingsport’s claim of fair use.

Nature of the copyrighted work. The court considered whether the work was (1) factual or creative; and (2) published or unpublished. Here, the image in question was of a construction site which did not leave much room for artistic expression. The photographer’s claim that his drone-operating skill was the creative aspect was not dismissed, but the court noted that the purpose of the photograph was to convey information and not for the purpose of creative expression. Additionally, the court noted the photograph had been previously published at the meeting and on the photographer’s Facebook page which favored a finding of fair use.

Amount and substantiality of the portion used.In the case at hand, the photographer contended that Kingsport’s copying was "more than what was necessary to effectuate its purpose." However, the court found that the use of the photograph in its entirety was reasonable given that the purpose of Kingsport’s article was to provide an alternate explanation for the pits in the image. As such, the copying of the entire image did not weigh against a finding of fair use.

Effect of the use upon the potential market.Despite the photographer’s claim that the copying of the photograph hurt his reasonable expectation to earn licensing revenue, he was not able to show that there was a potential market for this drone image of the construction site. In fact, the court noted, that the photographer tried unsuccessfully to license the photograph. As such, the court found that Kingsport did not displace the market for this particular work by the photographer.

As a whole, the court determined that the fair use factors favored a finding for Kingsport that their publication of the image in the article was fair use. For this reason, the court granted their motion for summary judgment and denied the photographer’s motion for partial summary judgment. The court dismissed the copyright claim with prejudice.

This case is No. 2:19-CV-00092-DCLC.

Attorneys: Richard Liebowitz (Liebowitz Law Firm, PLLC) for Brian Castle. Deborah A. Wilcox (Baker & Hostetler LLP) for Kingsport Publishing Corp.

Companies: Kingsport Publishing Corp.

MainStory: TopStory Copyright TennesseeNews GCNNews

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