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To be transformative, the infringing use must bring about a much starker change in expression.
Photographer Elliot McGucken captured a series of photographs of a lake that had formed on the desert floor in Death Valley after heavy rains in March 2019. McGucken licensed his photos to several websites which ran articles about the lake. Pub Ocean Ltd., a digital publisher, also posted an article about the lake using twelve of McGucken's photos, but it neither sought nor received a license. Through advertising, the article earned Pub Ocean $6,815.66 in the span of a year. Thus, McGucken filed the instant copyright infringement suit against Pub Ocean in the Central District of California. McGucken filed a motion for summary adjudication focused on Pub Ocean's fair use defense. The district court sua sponte granted summary judgment for Pub Ocean, concluding that it was entitled to a fair use defense as a matter of law.
Is Pub Ocean’s use of McGucken’s photos in their coverage of the lake considered transformative and therefore fair use?
CBS recognized that, as the court put it in Monge, the "[a]rrangement of a work in a photo montage . . . , can be transformative," the court have never held that merely arranging other works into a compilation is automatically transformative. The critical fact in CBS was not that the plaintiff's footage was placed in a collection of other video clips but that the footage served a different function when used as part of an introductory montage. And the court concluded in Monge that, despite the article's arrangement of the plaintiff's wedding photos, there was "no real transformation of the photos themselves." Here, McGucken's photos were used "as part of [Pub Ocean's] coverage" of the lake. While Pub Ocean's primary argument was that its article is transformative because it placed McGucken's photos in the "wider context" supplied by the article's factual presentation. On Pub Ocean's view, the article was transformative because its various tangents "provided context," with information about related topics that was "much more expansive" than the photographs themselves. That argument had little support in fair use doctrine. Practically speaking, it is hard to imagine what would not be a fair use, or what could not be readily turned into a fair use, under Pub Ocean's theory. Any copyrighted work, when placed in a compilation that expands its context, would be a fair use. That is not the kind of creativity that "further[s] . . . the goal of copyright, to promote science and the arts." Transformation requires more than "the facile use of scissors.” As in Elvis Presley, the topics in Pub Ocean's article beyond the ephemeral lake had little bearing on transformation. The article's tangents about topics like Death Valley and superblooms came before and after McGucken's photos, and they were illustrated by photos of their own from third-party sources. That these other topics are discussed in other portions of the article did not alter the court’s conclusion that McGucken's photos were used simply to illustrate the ephemeral lake and therefore lacked any transformative character.