A few additional thoughts on 11th Circuit fair use case

|The Volokh Conspiracy |

Eugene has already blogged [here] about the 11th Circuit's decision in the case of Katz v. Chevaldina, affirming the district court's judgment that Chevaldina's use of a (most unflattering) photo of the plaintiff, Raanan Katz, was a non-infringing "fair use." As Eugene noted, I worked on the appeal with Chevaldina's attorneys at the Center for Individual Rights, and because the case is not, technically speaking, over—Katz has the right to appeal to the entire court sitting en banc – I won't say too much about the decision (other than that I think, obviously, that it was correct). [My earlier thoughts on this case can be found here].

But I can't help commenting on a strange little wrinkle to this case that illuminates a small but interesting corner of copyright law.

Ordinarily, in copyright infringement cases, we don't care about the identity of the plaintiff beyond a single question: Is the plaintiff the "owner of the copyright" in the allegedly infringed work?

This can get a little confusing—at least, my students often found this confusing—regarding the rights of "authors," i.e. the person who snaps the photo, or writes the poem, or composes the tune, etc., in question. "Authors" play a critical role in the copyright scheme, because the copyright rights in a work vest in the author of the work upon its creation, and the author of a work becomes the initial "owner of the copyright" in the work he/she has authored.

But once that vesting of ownership occurs, the status of "authorship" becomes entirely irrelevant for copyright purposes—all that matters is ownership of the copyright. And because copyright ownership can be (and often is, within the structure of the existing copyright industries) transferred, an author who transfers the entirety of his/her copyright to a third party (and who is therefore no longer the copyright owner) has no rights at all* under the Copyright Act—or, more precisely, has no rights other than those he/she shares with other members of the public.

*There is one very limited exception to this rule, pertaining to "works of visual art," where authors get specific rights independent of the rights of the owner of copyright, but that applies to a minuscule fraction of copyright disputes.

This leads to some anomalous and occasionally amusing situations, where, for example, authors are sued for infringing the copyright in their own works. A well-known example of this rather odd phenomenon is the long-running litigation between John Fogerty and his music publishers, Fantasy Music. Fogerty had transferred the copyright to the Creedence Clearwater hit song "Run Through the Jungle" to Fantasy; many years later, when their relationship had soured, Fantasy sued Fogerty, alleging that a later-composed song of his ("The Old Man Down the Road") infringed its copyright in "Run Through the Jungle."

So back to the Katz case. What's odd about the case is that it is one of the very, very few cases in copyright law where the identity of the plaintiff actually does matter, quite significantly. Katz was both the owner of the copyright of the photograph in question—having taken what the court called the "highly unusual" step of obtaining an assignment of the copyright in the photo (from the Israeli news photographer who originally snapped it)—and the subject of the photo. While one might think that wouldn't matter at all for the analysis of the copyright claim—"subjects," like "authors," get no special treatment in the Copyright Act—it turns out to matter a great deal on the unusual facts of this case.

Here's the connection. In the analysis of Chevaldina's fair use defense, the court has to consider "the effect of the [defendant's] use upon the potential market for or value of the copyrighted work." The fact that it is Katz himself who is the copyright owner/plaintiff (as compared with, say, the photographer) made a big difference in the analysis of this fair use factor; because Katz had obtained ownership of the copyright in the photo "specifically in order to prevent its publication" and was "attempt[ing] to utilize copyright as an instrument of censorship against unwanted criticism," there "is no potential market for his work," and this factor weighed heavily in Chevaldina's favor.

But the case could well have turned out differently—at least, it would have required a very different analysis of this "market harm" factor —if someone else—the photographer, for example—had been the plaintiff and had been able to more credibly argue that the defendant's use negatively impacted the market for the photo. I can't think of too many copyright cases where the plaintiff's identity and status could be outcome-determinative in that way; that just doesn't happen often in copyright law.

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