Benjamin Appelbaum, Attorney at Law

Fair use and transformative use in copyright litigation

The information age has created a raft of new challenges for copyright holders and content creators in New Jersey and around the country. Digital infringers often defend their actions by claiming that their use of copyrighted materials was permitted under the fair use doctrine or was exempted from copyright law because the original work was substantially transformed. These issues were recently argued in a case filed by a photographer against a New York media company.

The case was brought over a portrait photograph of a bond trader that was commissioned by a financial magazine for use in a profile piece. Litigation was initiated when another financial journal used the same photograph without payment or consent in their story about the trader. The judge hearing the case ruled that the fair use doctrine did not apply because the allegedly infringing publication used the copyrighted material in the exact same way and for the same purpose as its original publisher.

The media company also claimed that their substantial alteration of the original photograph transformed it to such a degree that U.S. copyright law no longer applied. While transformative use is not addressed directly by federal copyright statutes, the concept has been recognized by the courts when considering the merits of fair use arguments. The judge also rejected this argument as all the media company did was add some text to the photograph and change its size.

Attorneys with experience in intellectual property litigation may seek to settle copyright disputes and avoid lawsuits whenever possible. This is a very complex and subjective area of the law, and what one judge views as infringement could look like fair use to another. Attorneys may suggest a proactive approach to intellectual property protection that responds quickly to infringement so that prolonged and ruinously expensive legal battles might be avoided.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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