Rumours about Fair Use – When Can You Use Images

Rumours about Fair Use – When Can You Use Images


A recent decision of the District Court of New York provides a useful insight to the American application of the doctrine of fair use. The decision involved three photographs of celebrities which were taken from BWP Media USA, Inc and reproduced by Gossip Cop Media, Inc. The Court found against Gossip Cop Media, Inc stating that:

“on some level [Gossip Cop Media, Inc] has lost the battle, but won the war; this Court agrees that its website may present images from other articles under a fair use theory, but concludes that its use of the three images in question did not constitute fair use”.

The doctrine of fair use is enshrined in 17 U.S.C § 107 which provides that:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work”.

The fundamental difference between the United States fair use doctrine and the fair dealing provisions contained at ss. 40 – 42 of the Australia Copyright Act 1968 is the non-exhaustive nature of fair use. Notwithstanding this difference, this recent United States copyright decision demonstrates the willingness of the New York District Court to ‘narrow’ the scope of fair use through an inquisitorial approach regarding:

  1. Whether the use was transformative;
  2. The commercial nature of the use;
  3. The nature of the work;
  4. The substantiality of the use; and
  5. The effect on the potential market.

Irish Bentley Lawyers have significant experience in intellectual property law. We have been successfully involved in a number of copyright disputes, within Australia and internationally. We are able to assist at the onset of a future business endeavour and at all stages of infringement action.

Please note that the above does not constitute legal advice and Irish Bentley Lawyers make no representations or warranties as to the accuracy of any of the information contained herein. If you have a copyright issue, then please do not hesitate to contact the team at Irish Bentley Lawyers – there is no substitute for proper legal advice based on your individual and unique circumstances.

[1] BWP Media USA, Inc v Gossip Cop Media, Inc, No. 13 Civ 7574 (KPF) Failla J 2016.

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