Straus v. DVC Worldwide, Inc.

Holding:

An isolated and inadvertent unauthorized use of copyrighted photo was so trivial as to fall below the threshold required for actionable copying, and unauthorized use of that same photo on defendant's website did not constitute "fair use."

Detailed Summary:

Plaintiff, a professional photographer, took a photograph of Arnold Palmer, copyrighted it, and then licensed it to defendants for use in a smoking cessation program marketing campaign, for which Palmer was the spokesperson. One month after the license agreement expired, plaintiff discovered that advertising materials using the photograph remained in one drugstore. The court held this use was de minimis, since it was in only one store of 23,000 that originally carried the advertisement and remained for less than a month. Plaintiff also learned that the photograph appeared in advertising materials on defendant’s website as part of defendant’s promotion of its own advertising business. Defendant argued that posting advertising materials is had created to promote itself to potential clients constituted “fair use,” but the court held that position strained the concept of fair use too far, particularly since defendant’s use of the photograph was wholly for private commercial gain.

Also See:

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