Lawyers tend to overlook the simple truth about the four elements “fair use doctrine” under 17 U.S.C. § 107 stretching arguments far beyond common sense. A recent case clearly sets out the commonsense aspect of “fair use”. In MCGUCKEN V. PUB OCEAN LTD. plaintiff’s slightly cropped photographs of a lake were posted without seeking or receiving a license. The court held that did NOT invoke a fair use defense to the plaintiff’s copyright infringement claim where the defendant’s use was for commercial purposes, and it was not transformative because it used the photos, with only negligible cropping, for exactly the purpose for which they were taken– to depict the lake.
The bottom line as noted by the court was “In defining and identifying that creativity, a court considers whether the copying use is transformative, meaning that it adds something new and important.” The key is what is “transformative” — cropping, or adding a caption is not going to be transformative! The commonsense approach courts take on this issue is clear, “the
article used the photos for exactly the purpose for which they were taken: to depict the lake.”
The oral arguments are here! McGucken v. Pub Ocean — Oral Arguments
Note: Is the image on this post copied from the internet without an indication of a copyright “fair use” assuming it was copyrighted under Federal law? Let me know what you think.