Photographer Elliot McGucken sued Pub Ocean Ltd after they published images of a lake that had formed in Death Valley without his permission. The U.S. Court of Appeals for the Ninth Circuit ruled in his favour.
The Central District of California decided that the publisher was entitled to a fair use defence, and the ruling overturned a lower court's decision that awarded summary judgement to Pub Ocean.
The panel ruled that Pub Ocean could not raise a fair use defence to McGucken's copyright infringement allegation."
The panel continued by outlining four legal criteria that "help highlight what form of creativity merits protection from the ordinary strictures of copyright law."
The court determined that Pub Ocean's article did not engage in "transformative use" since it had used the images "exactly for the purpose for which they were taken: to describe the lake."
The nature of the copyrighted work, which also weighed against fair use because the images are the artistic results of the photographer's "technical and artistic decisions," is the second mandatory consideration.
The third reason was also disregarded because Pub Ocean used all of McGucken's works, not just a small portion of them. The court stated that the fourth and final reason was likewise against fair use because Pub Ocean's actions "would undermine McGucken's licencing market if carried out in a widespread and unfettered manner."
The panel found that the district court erred by declining to grant McGucken partial summary judgement on the fair use because all four statutory elements were unmistakably in his favour.
McGucken had uploaded the images to a number of websites, where he had written about his quest to picture a very uncommon lake in Death Valley following significant rain.
However, the fine art photographer was not consulted by Pub Ocean, which ran a multitude of websites.
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