Rigsby and Adjmi: Two Recent Fair Use Opinions

In March, two district courts issued opinions in cases involving fair use, finding that the facts of both cases supported fair use claims. The first, Rigsby v. Erie Insurance Company involved claims over photographs taken of a car accident. Interestingly, the court raised the issue of fair use, which was an argument either not raised or not developed by the defendants in the case. The second, Adjmi v. DLT Entertainment, concerned a parody of a popular 1970s television show.

Rigsby, et. al. v. Erie Insurance Company, et. al.

On March 16, 2015, the District Court for the Western District of Wisconsin rejected the copyright infringement claims involving photographs taken of an accident and submitted as part of an insurance claim.

The court raised the issue of fair use, noting that a plaintiff’s claims of copyright infringement over photos taken documenting a car accident. Although two defendants did not raise the issue while the other two did mention fair use in their motion to dismiss, but did not develop the fair use argument, the judge nevertheless pointed out that “there is a strong argument that defendants’ alleged conduct qualifies as ‘fair use.’” Likening the use of the copying of photographs-at-issue to copying in the context of litigation, the opinion notes that

the only reasonable inference is that plaintiffs provided the photographs as part of the review of the . . . insurance claim. It is difficult to imagine how it could not be fair use for an insurer to copy or distribute a photograph for the purpose of evaluating an insured’s claim. Under that scenario, defendants would not be seeking to make any money off the photographs, to compete with plaintiffs or to confuse consumers. Further, plaintiffs do not suggest that they were harmed in any way by defendants’ use of the photographs.

The fair use argument in the case was secondary, however, to the issue of whether the photos were even protected by copyright. The district court found that the “plaintiffs do not identify anything original or creative about the photographs.” Rejecting the assertion that the lighting and copyright angles made the photographs original, the court pointed out that “every photograph must be taken at some angle and in some light. Plaintiffs do not identify any conscious choices they made regarding lighting or camera angles of the purpose of being ‘original.’”

Adjmi v. DLT Entertainment

On March 31, 2015, the Southern District of New York affirmed fair use in a parody case where the Adjimi, author of the stage play 3C, parodying the 1970s television series, Three’s Company, sought a declaratory judgment for fair use following a cease-and-desist letter from DLT, the rightholder to Three’s Company.

The court notes that

The animating principle of copyright law is the United States Constitution’s directive “[t]o promote the Progress of Sciences and useful Arts . . .” U.S. Const., Art. I, § 8, cl. 8. In practice, achieving that goal is an exercise in balancing the grant of property rights that incentivizes creative work, and the corresponding limits on the ability of the community to draw upon those ideas.

In determining what similarities exist between 3C and Three’s Company, the opinion points out that the plot premise, sets and certain scenes are copied from Three’s Company. However,

Despite the many similarities between the two, 3C is clearly a transformative use of Three’s Company. 3C conjures up Three’s Company by way of familiar character elements, settings, and plot themes, and uses them to turn Three’s Company’s sunny 1970s Santa Monica into an upside-down, dark version of itself. DLT may not like that transformation, but it is a transformation nonetheless.

[. . .]

[3C] has turned [Three’s Company] into a nightmarish version of itself, using the familiar Three’s Company construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena. Take first the cornerstone of Three’s Company, Jack’s false homosexuality: there is the obvious difference that 3C’s analogue, Brad, is actually homosexual: the abusive, demeaning treatment . . . constant homosexual slurs . . . and even rejection from his own family. This is a major departure. . . Three’s Company may have been ground-breaking and heralded in retrospect for raising homosexuality as a theme, but 3C criticizes the happy-go-lucky treatment of that issue.

The opinion notes that other topics, such as “homophobia, sexual aggression, drug use, self-consciousness, and self-esteem” were “merely glossed over” in Three’s Company. 3C, by contrast, criticizes and comments upon Three’s Company by “reimagining a familiar setting in a darker, exceedingly vulgar manner.” Thus, the court finds that the first fair use factor, the purpose and character of the use, “weighs heavily in favor of a finding of fair use.”

With respect to the second fair use factor on the nature of the copyrighted work, the court acknowledges that Three’s Company was a creative work. However, the three characters could be viewed as “stock characters to some extent.” Additionally, “Even granting that this factor weighs somewhat against a finding of fair use, it nevertheless does little to sway the overall determination.”

The third fair use factor evaluates the amount and substantiality of the portion of the copyrighted work used. The court notes that parody requires a “recognizable allusion to the original work.” However, the opinion points out that “3C copied many minor elements of Three’s Company, which had neither a parodic purpose nor were necessary to evoke Three’s Company” and found that “considered on its own, weighs against a finding of fair use.” However, the court continued, the standard for this factor in the parody context sets a floor rather than a ceiling and the minimal effect 3C has on the market “renders the third fair use factor of comparatively lesser importance.”

Finally, turning to the fourth factor of the market harm, the court cites the Supreme Court’s decision in Campbell, noting that while “parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.” The court finds that “there is no cognizable harm under the Copyright Act, and the fourth element weighs in favor of a finding of fair use.”

Evaluating the four factors together, the court determined that “the play is a highly transformative parody” that amounts to fair use. The court concludes, “The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge.”