Here's my expert analysis and commentary. I have also inserted a few comments within square brackets. These are square brackets: [ ].
It's ironic because Playboy has been much victimized by all types of internet pirates, ranging from individuals to the likes of Google. My understanding is that PB routinely prints earlier snapshots of centerfolds, such as school pictures and family portraits, and doesn't bother seeking copyright owner permission.
A threshold legal/factual issue is whether the owner timely registered copyright. I bet she didn't. And absent timely registration, she'll have a heck of a tough time proving any damages, because, frankly, the PB use probably didn't damage her in any way. Nor did PB measurably directly benefit. After all, people buy the rag to see the centerfold in her nude glory, not to see previous fully-clothed portraits or snapshots.
IF the photo(s) at issue were timely registered, then the owner can get statutory penalties ranging up to $150,000/image and attorney's fees, WITHOUT proving PB benefitted or the owner was harmed. The court award would be interesting to see, especially if the Court is irritated by PB's pattern of "use without permission."
I, and a copyright specialist I talked to at lunch, thinks any claim of "fair use" is legally without foundation. Or in layman's parlance, "totally bogus."
This one will be fun to watch.
Playboy Claims ‘Fair Use’ in Copyright Infringement Case
[I call the claim bogus]
By Rhett Pardon
Friday, December 29, 2006
SACRAMENTO, Calif. — Calling the complaint “vague and ambiguous,” [This is standard boilerplate in an Answer to a Complaint] Playboy Enterprises last week denied that it violated copyright protection laws by publishing a picture of Placerville, Calif., resident-turned-Playmate Colleen Shannon.
Last month, Playboy and Shannon were sued by photography studio owner Carla Calkins, who shot Shannon’s high school portrait in 1996.
Shannon gave Playboy the high school portrait included on her biography page in the 50th anniversary edition of the magazine in 2003, according to the suit, but she did not have permission to reproduce the photograph for public distribution. [Of course she didn't, absent an actual license or transfer of copyright ownership. And PB darned well knew it.]
Calkins, who owns Mother Lode Photography in Shingle Springs, Calif., is seeking damages, attorneys fees and profit related to the alleged infringement. The suit also asks that Playboy destroy all copies of the issue still in its control. [Destroy all copies? I doubt the court will order THAT! Book-burning is out of fashion these days, except in Arab countries.]
Calkins' suit alleges Playboy demonstrated “a pattern of willful disregard” for the copyrights of professional portrait photographers. [If they've been doing this, it sure as heck is "willful disregard."]
Playboy, in its rebuttal to the U.S. District Court in Sacramento, said that Playboy is protected by federal “fair use” statutes, allowing material to be used without permission for purposes of illustration or comment. [An utterly -- well, 95% -- bogus argument.]
It also said that neither Calkins nor her studio sustained any financial losses from the photo's use and that Calkins is not entitled to recover damages or legal fees under federal copyright law. [Big issue here is whether the stuff was timely-registered or not].
Playboy, represented by counsel from the San Diego law firm Cooley Godward Kronish, called for a jury trial to decide the matter. [This is a big law firm that does a lot of high-tech litigation].
[End of Article]