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Fair Use, First Sale and Marilyn Monroe
The Southern District of New York recently resolved a question that neither the Southern District nor the Second Circuit had ever squarely faced: Can the lawful owner of an art object create and post a photograph of that object in connection with the sale of the object through an online platform such as eBay, without the permission of the owner of copyright in the object? The sale of the object is clearly permitted under the first sale doctrine, codified at §109(a) of the Copyright Act, but by its terms §109(a) only creates an affirmative defense to the distribution of the physical object itself: “the owner of a particular copy … lawfully made under this title … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” The statute does not allow the making of a reproduction or a derivative work, such as a photo, or the display or distribution of such an image, and indeed courts (notably the Ninth Circuit) have sometimes found similar activities to be infringing.
In Stern v. Lavender, 16 Civ. 9886 (S.D.N.Y. July 20, 2018) (ECF 106), the Judge Paul A. Engelmayer largely denied cross-motions for summary judgment in a dispute involving a number of 1962 photographs of Marilyn Monroe, taken in Los Angeles by noted photographer Bert Stern at Monroe's last photo shoot before her untimely death (the Stern photos). The defendants, long-time studio assistants of Stern, claim to have received legitimate copies of some of the Stern photos directly from Stern, and were recently sued for infringement by Stern's widow when they created and posted their own images of the Stern photos in connection with offering the Stern photos for sale through eBay, Amazon and other digital platforms.
In a comprehensive decision, the court found that it could not resolve a number of factual disputes at the summary judgment stage, but did make two important findings that will narrow the scope of any future trial. First, the court found that Bert Stern had been the owner of copyright in the Stern photos, thus rejecting defendants' argument that the Stern photos had been works made for hire. Accordingly, plaintiff had standing to bring a claim for infringement. Second, the court found that if defendants had in fact been the lawful owners of legitimate copies of the Stern photos, as they claimed, and were thus entitled to sell those copies under §109(a), they could rely on the fair use doctrine, 17 U.S.C. §107, as a defense to creating and posting their own images of the photos in connection with selling the photos.
Fair Use
Section 107 of the U.S. Copyright Act provides that four non-exclusive factors shall be considered in determining fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
The Supreme Court in Campbell v. Acuff Rose Music, 510 U.S. 569 (1994), made clear that the four statutory factors must not be treated in isolation; rather, “[a]ll are to be explored, and the results weighed together, in light of the purposes of copyright.”
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