If you’re going to claim that the use of certain content counts as fair use, you should probably know what “fair use” means.
The fair use doctrine allows people limited use of copyrighted content without the need to get permission from the copyright holder first, but the law is specific about how and under what circumstances someone can claim fair use of a particular piece of content.
First, they can only use part of the content. Just reproducing the entire piece and distributing it on your own is not fair use.
Second, fair use is generally used to make a point about the content being used, such as in a parody or a review.
Third, whether the work in question is of a creative or factual nature.
Fourth, whether the person using the content for fair use intends to profit off the material in any way.
According to Judge Thomas M. Durkin, Jasmine Enterprises Inc. did not meet any of those requirements when claiming that their use of the three copyrighted photos they stole from FameFlynet constituted fair use.
The photos in question were pictures of the wedding of Nicky Hilton and James Rothschild. In September of 2015, a few months after the event itself, FameFlynet, a California-based agency that licenses photos for both online and print publications, registered the photos with the U.S. Copyright Office.
FameFlynet said the licenses for the photos taken at the event were sold to various buyers, with the one that brought in the highest price going for $2,500 to People magazine.
The next month, FameFlynet found out that Jasmine, a retailer in Lombard that sells wedding dresses and consulting services, had used the images on its blog, alongside one of their own wedding dresses that looked similar to Hilton’s dress.
FameFlynet sued in September 2016 for copyright infringement in federal court in New York, but Jasmine had the case moved to Chicago in June 2017.
Jasmine argued fair use, but Judge Durkin didn’t find any evidence to support that claim. He pointed out that Jasmine was using the photos as they were and in their entirety, rather than cropping or modifying them in any way.
As to whether the photos were factual or creative, he determined they were a combination of both, rendering that point moot in this particular case.
Jasmine argued that it had not profited from the use of the images on its blog, but Judge Durkin disagreed. Although the blog itself did not make money for the store, the intention was for the blog to draw customers in and entice them to buy one of Jasmine’s dresses and/or some of their consulting services. The shop, therefore, was, in fact, looking to profit off its use of someone else’s photos, however indirectly.
The other factor Judge Durkin considered was whether FameFlynet would be harmed if this sort of use of its copyrighted photos were to become widespread, and he concluded that it would. FameFlynet would lose the ability to control the exclusivity of their copyrighted content, causing the prices to tumble.
Judge Durkin has not yet put an exact price on the amount of damage Jasmine inflicted on FameFlynet, but a status hearing has been scheduled for October 16th.Super Lawyers named Illinois commercial law trial attorney Peter Lubin a Super Lawyer and Illinois business dispute attorney Patrick Austermuehle a Rising Star in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex class action, copyright, noncompete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes. Our Schaumburg and Northfield business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0333 or our toll-free number (833) 306-4933. You can also contact us online here.