Wednesday, April 24, 2013

Rules for Reproducing Copyrighted Evidence

Dear Rich: I'm filing my first pro se case for copyright infringement. Is it fair use to make a copy of something to use as a evidence (or exhibit) in court. Courts typically consider it a fair use when copyrighted material is reproduced for a court proceeding. Here are some examples:

  • The Second Circuit ruled that it was a fair use to reproduce a series of web essays as supporting evidence. 
  • A New York district court reached a similar result when copyrighted videos were introduced as evidence. 
  • Michigan federal court also reached the same fair use conclusion when construction photos were introduced into evidence. 
  • The Tenth Circuit excused copying of a copyrighted work for litigation purposes as a fair use in 2007. However, the Tenth Circuit refused, unlike the Ninth and Second Circuits, to establish a fixed rule that such uses, by their nature, are a fair use. Instead, each case should be judged on its merits.
  • The Ninth Circuit has stated that the use of copyrighted material as evidence in judicial proceedings is fair use, so long as the users do not reproduce the work for its “intrinsic purpose.” 

What's an "intrinsic purpose?" It's a use that is for the same purpose as the copyright holder intended. For example, it was not a fair use when one party copied photos after it refused to pay the $15 per photo fees incurred by a trial evidence firm that had prepared the photos for litigation. In other words, the photos were prepared for the litigation and one party sought to avoid paying for their preparation.
PS. Good luck with your pro se case. (Here's the strategy that the lawyers on the other side will use against you.) 

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