This the second in a series of “loss scenarios” provided by Sinead Murphy of Hiscox. Meet Sinead and learn more about what publishers can do to protect themselves at the June 18 meeting.
A large reference-book publisher produces and distributes an illustrated biography of a famous American counterculture band that includes, according to the book’s jacket, “rare and unseen photography” as well as “seminal posters, memorabilia, and ephemera,” along with personal essays and a comprehensive timeline of the band’s history. Included within the book’s historical timeline are seven reduced-sized images of concert posters for which the publisher did not obtain reprint permission.
The copyright holder sues the publisher for infringement, seeking an injunction against further distribution of the book, the destruction of all unsold books, and actual and statutory damages. Following nine months of discovery, the publisher files a motion for summary judgment conceding both that plaintiff owns the copyright in the posters and that the publisher copied the works without authorization but contending that the use of the images in the book constitutes non-actionable “fair use” of the works.
The trial court agrees and grants the publisher’s motion, concluding that the book’s use of the copyrighted works was protected because it was sufficiently transformative, made only minimal use of the posters, and did not affect the market for the posters themselves. On appeal, the judgment of the trial court is affirmed.
The total cost of litigating this case for the publisher would be expected to be approximately $525,000.