Fair Use for Getty’s Picture of Statute?

By Luo Yanjie

    Getty Images (NYSE: GTY) (the “company”or “Getty”) is a company globally known for its picture license business for third party’s use. In general, the company shall appear in the court as the plaintiff, yet as reported in recent (note: the link is in Chinese), Getty was charged in Beijing Haidian People’s Court. The story is: Getty was found by a Chinese statute designer of unlicensed collection of his works into the company’s data base, which was on sale to the public; therefore, he filed a lawsuit against Getty, demanding a compensation. After the hearing, Getty was judged non-fair use in the case, and shall compensate the plaintiff RMB 5, 000 and an apology.

Although we have found no clue of where the statute had been placed, and no other information for such placing is available so far, by the Judge’s analysis, the statute shall be seen in a public place, for “not a fair use” was first adjudicated in the consideration of infringement. Hence, in view of the judicature decision, no picture shot on public articles shall be used for commercial purposes. Despite so, we bear a different opinion on that:

I, To use works installed in the public place could be included in “fair use”

In the above case, the company’s picture, with no doubt, is “adapted” from others’ copyrighted works, which demands the original creator’s license, in consideration of the statutory clauses that the creator shall have the right to develop new works through adaption.

But in the same time, as provided in Article 22 of the Copyright Law:

“In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:

…(10) copying, drawing, photographing or video recording of an artistic work located or on display in an outdoor public place; ”

So, with the reference to this regulation, it could be a fair use of Getty once the shot stature was placed in a public place.

II, The commercial use shall not be an exception of “fair use”

In spite of the above laws saying the free “fair use” of outdoor works, Article 21 of “Implementing Regulations of The Copyright Law of the People’s Republic of China” provides that the fair use shall not influence the normal use of the works, and shall not damage the legal interests of the right holder with no reasons. While in previous case, the court judged the infringement as finding the company “damaged the legitimate interests of the copyright owner” due to their commercialized use of the pictures.

But, it seems that the Supreme Court has given us an contrary answer to the question, which is as the following:

1. It’s indicated in the Judicial Reply by the Supreme People’s Court in the Copyright Dispute between Shandong Tianli Propaganda Co., Ltd and Qingdao Hisense Telecommunication Co., Ltd.2004 that

“the method and scope of the fair use shall include the re-use for profits”.

2. And as seen in the Several Opinions in Intellectual Property Trial to Promote Socialist Cultural Development and Prosperity and Promote Independent Economic Coordinated Developmen issued by the Supreme Court in 2011,

“to copy, paint, shot picture or video on the art works installed or displayed in the public, and afterwards to apply the gains through reasonable methods within a fair scope, either with the purpose for commercial use or not, could thereby be a fair use.”

Therefore, in our opinions, it appears to be biased for the court in the above case to judge Getty not a fair use only considering its commercialization.

III, The infringement could be established once the normal use of the work has been influenced.

As previously mentioned, the “profit” could not be the only factor in the consideration as deciding the fair use, and the influence on the original creator’s right exercise shall be regarded. Allow for the inadequate introduction to the case, we have no access to make our judge on this aspect, but to our understanding, the fair use shall also refer to the non-replacing use of the adapted work, while, such as the infringement of to make copy of the pictured statute as the replacement to the original work’s copies.

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