Apple says the iPhone changed everything. Be that as it may, garden variety cell phone–camera devices have been around about a decade longer than Apple’s iconic iPhones, and conceptually speaking, these devices have had a greater impact on our at-large social habits, news, criminal justice system—and even our society—than Steve Jobs could ever dream of. Oftentimes camera phone technology is useful: to thwart criminals, document news or natural disasters in real time, or to preserve evidence for later use in court. But when a majority of people go through their everyday lives armed with cameras at their sides, modern technology sometimes leads to breaking the law, as Nick Bilton wrote in yesterday’s New York Times: Phone Cameras May Raise New Copyright Questions.
I won’t bother restating what Bilton already has (his article is good, and you should read it), but there are a few legal points that didn’t make it into the article that relate to common questions people ask of me, so I thought it would be worthwhile to mention them here. Bilton’s predicament started when he was snapping pictures of interior design books at a local bookstore, which he planned to later share with his own interior designer. As any conscientious American might do, Bilton wondered whether his act of photographing someone else’s work could possibly be infringing on the authors’ copyright(s).
Before we can discuss whether the activity constituted infringement, we have to know exactly what copyright infringement is. The copyright laws are federal, and are codified in Title 17 of the U.S. Code. Therein, copyright infringement is defined as the unauthorized reproduction, dissemination, or derivative use of another’s copywrighted work. Pretty broad definition, right?
The penalties for copyright infringement include injunction (a court orders you to discontinue the infringing activity) (§ 502), and monetary penalties, which can be measured by the amount of profit you made from the other person’s copyrighted material, or statutory damages, which range from $750 all the way to $30,000 (§ 504). The court also has the authority to award the copyright holder attorneys’ fees, on top of damages (§ 505), and in some cases infringement can be criminal (§ 506).
Fortunately, there’s a common exception to copyright infringement, known as the Fair Use Doctrine, which provides that it is not infringement to reproduce another’s copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” (§ 107) The statute also sets forth a four-part analysis to help identify whether allegedly infringing activity is actually fair use:
(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 problem with this test (and with the Fair Use Doctrine in general) is that the analysis is almost entirely subjective; it doesn’t give the ordinary person any clear answers as to whether the activity in question is infringement. In Bilton’s article, he asked three notable copyright experts, all law professors, about whether his act of photographing pictures from a book qualified as fair use. He couldn’t get a clear answer from any of them. Julie A. Ahrens, associate director of the Fair Use Project at Stanford Law School told Bilton: “The core issue here is that you are creating a copy of something rather than buying it. Is it morally incorrect? Maybe. But it entirely depends how much of the book you copy, and what you do with that copy, that would determine if it was illegal.”
The unfortunate reality is that even if you were concerned about your own liability for copyright infringement, and you went to a copyright attorney for advice, even that attorney might not be able to give you a definitive answer. Of course this is not always the case. And it doesn’t mean that you should avoid seeking the advice of a knowledgeable professional. Attorneys know how courts have interpreted specific language from the text of the laws, and oftentimes there are similar fact patterns that the attorney may know of, which have already played out in court. Regardless of the situation, if you’re concerned about your own potential copyright infringement, with statutory penalties as high as $30,000, you’re better off having a legal opinion than assuming you’re in the clear.