Little Timmy opens a business selling frozen yogurt. On June 1, 2016, Little Tim

Question

Little Timmy opens a business selling frozen yogurt. On June 1, 2016, Little Timmy Launches a website for the business. The site is colorful with pictures of his products, and stock photos of nature scens and people. The pictures remain on the website, with the occasional change in pictures of the product itself and sometimes rearranging the photographs.

Big Brad is a photographer who licenses the use of his photographs online and sells copies at art studios across North America and Europe. On July 13, 2017, Big Brad stumbles upon Little Timmy's frozen yogurt website. Big Brad notices that four of the photos are photos that Big Brad licenses through his website .The pictures as they appear on Big Brad's site are:

Those photographs on Timmys site:

Big Brad has been selling licenses to use the photographs since March 1,2015, for $50 each. Big brad registered the photographs at Exhibits A-1, B-1, and C-1 with the US Copyright Office on March 8, 2015. He forgot to register the photograph at Exhibit D-1. Big Brad correcdts that oversight and registers Exhibit D-1 on July 20,2017.

Big Brad is unable to locate any sign that little Timmy purchased a license to use the photographs. On August 15,2017, Big Brad sues Little Timmy for copyright infrigment over the four photographs. Little Timmy raises fair use as his sole defense.

Big Brad cannot find any proof of any decrease in license purchases of the four images since March 1,2015. Little Timmy attributes a fair portion of his business to customers drawn to his physical location by his website. There is no way to connect any of Little Timmy's revenue to Little Timmy's use of any of the photographs.

Questions:

1.Read the statue attached to this Bonus Assigment. What factors should the court consider to evaluate Little Timmy's fair use defense?

2. Based on the information you have, do you think the judge should either (a) rule in favor or against Little Timmy on the fair use defense before trial (e.g., on a summary judgement motion), or (b) let the case go to a trial? Why?

3. Can Big Brad get statutory dmages as to any of the photographs if he wins? Why or why not?

4.Do you think Big Brad would be better off to seek statutory damages or actual damages (lost profits,etc)? Why or why not?

5. What other relief could Big Brad get if he wins?

Explanation / Answer

1. The court should consider following factors.

(a) Have the photos been transformed by the user in some way or the other to suit the purpose or they have been used as it is.

(b) Nature of the work and its benefit to the public.

(c) extent of the work taken for use.

(d) Effect of the use on the potential market of the copyright holder.

(e) Credentials of the user.

2. Based on the information, it can be found out that the copyright material taken for the use was not intended to cause any harm ( financial or otherwise). The photos though clicked by the plaintiff, were tarnsformed by the user to relate them to his business. The act did not cause any financial damage to the business of the plantiff. Lastly, the user had no malicious intentions. Hence, it is more likely that judge will rule in the favour of defendant.

3. The defendant can claim the damages for images A-1.B-1 and C-1 if he registered them with patent office within 3 months of publication. The claim for D-1 is not valid because it was registered later.

4. Statutory damage is greater than the actual damages in the case. Actual damage would have been $150 for 3 photos if the defendant had purchased them from the copyright holder, while the munimum statutory damages are $750. Even if the user claims innocence, it is $200.

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