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Bloggers and artists often ask, “how much of a photo do you need to alter to avoid copyright infringement?”   Five changes? Fifteen?  The Seventh Circuit addressed the issue in the Kienitz v Sconnie Nation case recently. According to the court, Sconnie Nation made t-shirts displaying an image of  Madison Wisconsin mayor Paul Soglin, using a photo posted on the City’s website that was authored by photographer Michael Kienitz.

The court looked to the Cariou v Prince decision, but complained that its approach to appropriation art looked only at whether a work is “transformative” and doesn’t fully address a copyright owner’s derivative rights under 17 U.S.C. Sect. 106(2).  This court analyzes the market effect, looking to see if the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).

The photographer in this case did not claim that the t-shirt was a disruption to his own plans to license the photo for t-shirts or tank tops. He did not argue that demand for the original work was reduced.

And as for Fair Use factor three, the amount and substantiality of the portion used … the court wrote “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”  The original background is gone, its colors and shading are gone, the expression in the eyes can no longer be read, and the effect of the lighting is “almost extinguished.”  “What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

 

cheshire cat

Kienitz v Sconnie Nation

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Justia attorneys have summarized a number of unusually interesting recent copyright decisions that I’d like to call to your attention. If you click through, you’ll see human written, human readable case summaries.

Garcia v Google – or the Innocence of the Muslims case, aligns copyright interests with an actress’s interest in controlling the use of her performance but is juxtaposed to free speech interests by Google/YouTube

Anderson v. LaVere – heirs of Mississippi blues musician Robert Johnson dispute over royalties

Brownstein v. Lindsay – about whether a court has authority to cancel a copyright registration when a plaintiff’s authorship has been “expressly repudiated”

Swatch v Bloomberg – in which Bloomberg obtained a copy of a conference call recording discussion a company’s recent earnings report

 

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Here’s a sampling of recent copyright decision summaries written by Justia lawyers:

 

  • Enterprise Management Limited, Inc. v. Warrick

    May 21, 2013
    In a copyright infringement case, Enterprise Management Limited, Inc. and Mary Lippitt appealed a summary judgment in favor of Donald Warrick. Lippitt contended, contrary to the district court’s holding, she demonstrated a prima facie case of copyright… read more »
  • Righthaven LLC v. Hoehn

    May 9, 2013
    Plaintiff filed separate copyright infringement suits against defendants for posting articles from the Las Vegas Review-Journal online without authorization. In consolidated appeals, the court agreed with the district court that plaintiff lacked standi… read more »
  • Bridgeport Music, Inc. v. Smith

    May 21, 2013
    In 1974, songwriter, recording artist, producer, and performer Tilmon, composed the song “You’re Getting a Little Too Smart.” In 1976, Tilmon assigned all of his rights to the song to Bridgeport Music. In 1997, rapper Rashaam A. Smith a/k/a Esham A. Smith released the song “You & Me,” which, according to Bridgeport, unlawfully contained samples of the composition “Smart.” In 2003, plaintiffs, including Bridgeport, sued for copyright read more »
  • Cariou v. Prince

    April 25, 2013
    Plaintiff sued defendant and the Gagosian Gallery, alleging that defendant’s series of paintings and collages infringed on plaintiff’s registered copyrights in certain photographs from a book of classical portraits and landscape photographs that plaint… read more »
  • WNET v. Aereo, Inc.

    April 1, 2013
    Two groups of plaintiffs, holders of copyrights in programs broadcast on network television, filed copyright infringement actions against Aereo. Aereo enabled its subscribers to watch broadcast television programs over the internet for a monthly fee. P… read more »
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Anthony Falzone writes about the court’s decision to stop publication of The Harry Potter Lexicon, ruling against Fair Use. All is not over. He writes:

Finally, remember that avada kedavra — the killing curse — is not always fatal. One wizard survived it. Three times. And it was he who cast the spell (and won’t be named here) that ultimately suffered for it. Maybe someday the Lexicon will be known as The Book That Lived.

Here is Stanford’s offical press release:

STANFORD, Calif., September 8, 2008– Stanford Law School’s Fair Use Project has released the following statement on behalf of RDR Books and its counsel regarding today’s decision on Warner Bros. Entertainment Inc. et al v. RDR Books et al issued by U.S. District Judge Robert B. Patterson:

“We are encouraged by the fact that the Court recognized that as a general matter authors do not have the right to stop the publication of reference guides and companion books about literary works. As for the Lexicon, we are obviously disappointed with the result, and RDR Books is considering all of its options, including an appeal.”

Court decision and filings here at Justia: Warner Bros. Entertainment Inc. et al v. RDR Books et al

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