Photo Attorney

May 23, 2008

Photographs of Useful Articles Not An Infringement

As discussed in my March 20, 2008, and March 16, 2008, blogs, the courts have been divided as to whether photographs of copyrighted works are derivative works. Similarly, William Patry discusses in his blog today Section 113(c) of the Copyright Act. It states:

In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

As Patry explains, this statute is designed "to permit those selling lawfully made copies of commercial goods that may have some copyrightable element, like a label, to advertise the goods for sale without running afoul of the copyright law." Unfortunately, in the case reviewed, Patry believes that the court failed to consider this important law.