Apparently all is fair in love...and in copyright.  Generally, the owner of a copyright exclusively enjoys a  "bundle of rights" which includes the rights to reproduce the copyrighted work, prepare derivative works based on the copyrighted work, distribute copies of the copyrighted work, and perform and display the copyrighted work.^[1]  However, there are various limitations on these exclusive rights, one of which being the doctrine of fair use.  Fair use is defined as the use of a copyrighted work "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research."^[2] In determining whether or not a use of a copyrighted work qualifies as fair use, the following factors are considered:

(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 the 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^[3]

Ultimately, the trust test of fair use is "whether the copyright law's goal of promoting the progress of science and useful arts would be better served by allowing the use than by preventing it."^[4]  

    The Second Circuit recently discussed the fair use exception in Sarl Louis Feraud Int'l v. Viewfinder, Inc.^[5]  In that case, Sarl Louis Feraud was seeking to enforce a default judgment by a French court for one million francs against Viewfinder, a Delaware corporation.^[6]  Feraud alleged that Viewfinder violated his copyright when it placed images of the designer's full collection on its online fashion magazine.  The magazine, firstView, contains photographs of the season's newest fashions as well as old collections, and occasionally sells its photographs to other publications.  While clothing designs are not protected under U.S. copyright laws, this is not a barrier to recovery of the judgment which was based on French law.^[7]  However, Southern District Judge Gerald Lynch dismissed the action finding that enforcement of the French court's judgment would be repugnant to New York public policy because Viewfinder's actions were protected by the First Amendment.^[8]  The Judge went on to say that the "First Amendment simply does not permit plaintiffs to stage public events in which the general public has a considerable interest, and then control the way in which information about those events is disseminated in the mass media."^[9]  

     However, the Second Circuit found that a deeper analysis was needed.  It noted that "[i]ntellectual property laws co-exist with the First Amendment in this country, and the fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey intellectual property laws."^[10]  Also, the District Court had failed to look to the applicable French intellectual property laws to determine whether they infringed upon rights protected by the First Amendment.^[11]  The Second Circuit suggested that the proper analysis should have involved two prongs.  First, there had to be a determination of the First Amendment protections available under New York public policy to news publications accused of infringing upon intellectual property rights.  Then, these would have to be compared to France's intellectual property laws to see if they provided comparable protection.^[12]  The Second Circuit asserted that a closer consideration of the fair use doctrine was necessary in the court's analysis.  The doctrine has continuously been held by the Second Circuit to "encompass all claims of first amendment in the copyright field."^[13]  Because there was not enough information in the record to apply the fair use doctrine to the case, the Second Circuit reversed and remanded.

     On remand, despite Judge Lynch's suggestion that the parties have a hearing on the matter of the fair use doctrine, the plaintiff filed a motion for summary judgment asserting that based on the facts, the defendant's actions could not be protected under fair use.^[14]  The Judge determined that because there were disputes over issues of fact that needed to be settled in connection with each of the four factors of the fair use doctrine, the motion had to be denied.

Purpose and Character of the Use

     The court listed several ways to approach the question of the purpose and character of Viewfinder's use of the plaintiff's copyright.  The first of these was to determine whether or not the use was transformative.  A use could be found to be transformative if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message...."^[15]  The plaintiff argued that Viewfinder's use could not be transformative because it was merely a duplicate of the original work and that the photographs "leave the character of the original garments unchanged."^[16]  The Judge disagreed, noting that the purpose behind Viewfinder's posting of the photographs (to report on the fashion industry's latest trends) was different from the plaintiff's original purpose in creating the garments.^[17]

     Next, the court looked at whether Viewfinder's use was commercial.  The court admitted that Viewfinder's use was clearly commercial in that it was profiting off of showing pictures of the plaintiff's copyrighted work, and also selling the photographs to other publications.  However, the court noted that previous cases had found photographs to be a form of artistic expression, and as a result, not a photocopy of the original work, but rather a unique representation of the work.^[18]  Thus, it was unclear how damaging the fact that Viewfinder's use was commercial would in fact be in the overall analysis.

     Finally, the propriety of the use is a consideration that falls under the purpose and character element.  The plaintiff alleged that the defendant acted in bad faith.  The evidence did in fact show that the two photographers who took pictures of the copyrighted garments violated the terms of their press accreditation.  However, this did not necessarily mean that the photographers acted in bad faith, and there was testimony from the individuals that they were unaware of their violations.  As a result, the evidence was inconclusive.

Nature of the Copyrighted Work

     Under this element of the fair use doctrine, it is recognized that some works are given broader protection than others.  Works that are artistic rather than factual tend to receive broader protection^[19], and the same is true for works that are unpublished versus those that have already been published.^[20]  The court did not deny that the garments were artistic.  It was the issue of whether the work had been published or not that was unclear.  The plaintiffs argued that the garments had not yet been published because the pictures were taken at a fashion show that was not open to the general public.  On the other hand, Viewfinder pointed out that the fashion shows in Paris are a "highly-publicized commercial exhibition to which the international media has been invited, and for which public attention is not only expected but courted."^[21]  Thus, the Judge asserted that this issue required a fact-intensive investigation, and was improper to determine on a motion for summary judgment.

Amount and Substantiality of the Portion of the Copyrighted Work Used

     This third factor is significant in the overall determination of whether or not a use can qualify as a fair use.  Historically, the extent of permissible copying varies with the nature and purpose of the use.^[22]  Viewfinder admitted to having posted full length pictures of each of the garments in the entire season's collection.  Despite this admission, the court questioned whether it was possible that the entire design of a three-dimensional garment could be captured in a two-dimensional photograph.  Additionally, it was arguable that it was an articstic representation of the plaintiff's designs that appeared on Viewfinder's website, and not an exact copy.^[23]  Also, the determination of the amount of the copyrighted work that was used had to be balanced with Viewfinder's purpose.  A factfinder was needed to resolve these issues.

Effect of the Use on Potential Markets for or Value of the Copyrighted Work

     To determine the effect of the use on the original market for the copyrighted work, courts have considered whether the secondary use either fulfills the demand for the original work,^[24] or diminishes or prejudices the potential sale of the work.^[25]  The court found that Viewfinder's pictures did not fulfill the demand for the original work because photographs could not be a substitute for garments.  The plaintiff argued that Viewfinder's pictures would facilitate the creation of knock-offs of their original works, thereby effecting the original market for the works.  While the court understood that this was a possibility, there was no evidence on the record to show that imitations actually affected the sales of the "high-fashion couture designs actually exhibited at the fashion shows."^[26]  Also, with all of the photographs of the plaintiff's garments that were available to the public through other publications, the court was unable to assess the effect of the defendant's photographs separate from the rest of the media coverage.^[27]  The judge concluded that the evidence on the record was not conclusive enough to make a determination on this issue.

     Plaintiff's also made the claim that Viewfinder's photographs effected the market for photographs of their garments.  They claimed that had Viewfinder not taken and posted the pictures, other media companies would have had to approach them in order to obtain photos.  This argument was quickly dismissed by the judge because the plaintiffs acknowledged that they did not in fact sell photographs of their works to the media.  The judge pointed out that the fashion industry thrived in part due to the glamour and attention produced by media coverage of events such as fashion shows.^[28]

     Viewing all of the factors together, the judge determined that "it cannot be said as a matter of law that no reasonable fact-finder could conclude that the fair use factors weigh  in favor of Viewfinder's use."^[29]