Southern District Finds Fair Use For Photos of Copyrighted Works Used to Promote Sale

Category: Art Law | Copyright | Intellectual Property Law

October 4, 2018.


So, you own a piece of art that you want to sell.  Can you take and use pictures of the artwork to promote its sale without running afoul of copyright laws?  Yes, you can according to a recent decision from the Southern District of New York in Stern v. Lavender (“Stern”).


In Stern, long-time studio assistants of noted photographer Bert Stern alleged that Stern gave them original copies of his famous photos from Marilyn Monroe’s last photoshoot before her death.  The defendants, seeking to sell the photos, captured images of the photos which they posted on eBay, Amazon, and other digital retail websites to promote the sale.  In response, Stern’s widow brought suit against the former studio assistants, alleging the promotional photographs violated 17 U.S.C. § 106 of the Copyright Act, which grants copyright holders the exclusive right to create derivative works.

Fair Use

The defendants argued that their promotional photographs constituted Fair Use pursuant to Section 107 of the Copyright Act.  The Fair Use doctrine permits non-copyright holders to use copyrighted works without permission depending on a balancing of four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Southern District Court stopped short of resolving the case in favor of the defendants due to a factual dispute surrounding ownership of the photographs in question that could not be resolved at the summary judgment phase.  In spite of this, the Court considered the above factors in finding that photographs of copyrighted works made to promote the sale of a copyrighted work constitute Fair Use under the Copyright Act.

First Sale Doctrine

It is worth noting that the Court also found that the defendants, if they are indeed the rightful owners of the original copies of the photographs at issue, were undoubtedly permitted to sell the works pursuant to 17 U.S.C. § 109(a), known as the First Sale Doctrine.


Final pre-trial conference for this case is scheduled for November 8, 2018, when the Court will decide whether the defendants are indeed the lawful owners of the photographs at issue.  If the Court finds that the defendants are the lawful owners, they will prevail on a fair use defense.  Otherwise, the Court’s fair use finding will simply serve as favorable precedent for art collectors and dealers looking to sell copyrighted works.

Find the full decision on Justia here.

To learn how CASTAYBERT PLLC can assist you with an art law issue, click here.

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