Did They Photocopy Your Image?
Photography is often used either as direct evidence or to illustrate physical conditions of its subject in judicial proceedings (i.e. trials) or quasi-judicial proceedings
Clearly, if photographs are legally obtained, they can always be used without fear of infringement. This would occur when authorized prints are purchased and used in evidence. In that instance, no copies are made and just the purchased prints are used.
Moreover, if the photograph played some role in the underlying facts of the case, its use would probably be a fair use. For example, if the issue was whether photos were pornographic or not, they obviously can be used as evidence to help decide the issue.
On the other hand, a United States District Court in Michigan has held that use of photographs as evidence can constitute copyright infringement when the photographs were created specifically with the possibility of future litigation in mind, and where the defendant made use of unauthorized photocopies, while refusing to pay the fees quoted by the photographer to buy copies directly from the photographer.
The facts in this case, Images Audio Visual Productions, Inc. v. Perini Building Co., are straightforward. The plaintiff's principal, Robert Rentschler, is a professional photographer specializing in aerial photography of construction sites. He was retained by the defendant, a construction firm, which was building a casino and resort complex for a Native American tribe in Michigan.
As is customary in the construction industry, the construction company wanted to document the progress of the job for the tribe through photography to create an evidentiary record for use in the event of a dispute during or after construction.
The construction company retained the photographer to document the project for an agreed-upon compensation which included a per flight fee and prices for additional prints.
Over the next 18 or so months, the photographer made approximately 47 flights. The construction company selected 305 of the resulting images for printing, and paid the photographer the agreed-upon amount.
The Native American tribe became dissatisfied with the progress of the construction company's services. An arbitration proceeding followed.
THE PHOTOCOPY SOLUTION
The construction company asked the photographer for a quote to buy six sets of prints of the construction photos, totaling about 1,830 copies, which it intended to distribute to the arbitrators, witnesses and attorneys. The construction company rejected all of the photographer's options for payment and then simply had a local photocopy service run off less expensive color copies, which were used as evidence in the arbitration.The photographer sent a cease and desist letter, alleging that such acts constituted copyright infringement. The matter was not settled and litigation ensued.
On motions for summary judgment on the issue of liability, the Court found that such use constituted copyright infringement, which was not protected by the fair use doctrine. The Court found that the infringing uses were not at all transformative in that the photos were used exactly for the specific purpose for which they were created -- to
Thus, the defendant, having contracted for having photos created for use in an arbitration, cannot circumvent the copyright laws by making its own photocopies to deprive the plaintiff of the intended market.
In this case the written documentation was clear and there was no dispute as to the facts. It is but another example of the benefits to a photographer of having a clear and concise paper trail.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: Heckeresq@aol.com.
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