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A construction company infringed a photography company’s copyrights by making color photocopies of photos for use in an arbitration proceeding stemming from a construction project, a federal judge has ruled ( Images Audio Visual Productions Inc. v. Perini Building Co. Inc., No. 99-73855, E.D. Mich.). U.S. Judge Gerald E. Rosen of the Eastern District of Michigan entered partial summary judgment April 12 for Images Audio Visual Productions Inc. in a suit against Perini Building Co. Perini hired Images to take aerial photos of its construction work at the Soaring Eagle Casino and Resort in Mount Pleasant, Mich. Images principal Robert Rentschler flew over the site 47 times in an 18-month period in 1995 and 1996 to take photos; Perini selected 305 images for printing. In early 1997, the Saginaw Chippewa Tribe, owners of the casino and resort, terminated Perini’s contract for lack of progress in the construction. Perini filed an arbitration demand, seeking damages of $40 million; the tribe counterclaimed, alleging defective work and construction delays. Perini contacted Images for a quote on six sets of photocopies of the construction photos for use in the arbitration proceeding. Images quoted a price of $18,000, then reduced the quote to $13,000 when Perini complained that the price was excessive. Alternatively, Images offered to work out an “image use fee” arrangement or to transfer its copyright to Perini at a cost of $43.50 per negative. COPIES MADE Dissatisfied with the offers, Perini arranged to make color photocopies of the photos at a cost of $1 per copy and had the copies admitted into evidence in the arbitration, with additional sets of copies distributed to the arbitrators, witnesses and counsel. Images informed Perini by letter in October 1998 that copying of the photos was unauthorized without his permission. The parties’ counsel exchanged letters, but the dispute was not resolved. Images sued, alleging breach of contract and copyright infringement, and moved for summary judgment on the infringement claim. Perini also moved for summary judgment, arguing that its reproduction of the photos for use in a quasi-judicial proceeding constitutes fair use and that the failure to address photocopying in their agreement defeats the contract claim. Granting Images’ motion and denying Perini’s, Judge Rosen held that all four factors set forth in Section 107 of the Copyright Act – purpose and character of the use, nature of the copyrighted work, amount and substantiality of portion used and effect on potential market – weigh against a finding of fair use. PURPOSE AND CHARACTER On the issue of the purpose and character of the use, Judge Rosen said that while the copies were made specifically for use in a court proceeding and not for commercial purposes, “the Court cannot overlook the complete absence of any ‘transformative use’ in Defendant’s mere reproduction of Plaintiff’s photos.” Further, Judge Rosen said, two other factors have “great significance” in analyzing the first factor: “(1) that Plaintiff was retained in part to create a photographic record of Defendant’s construction efforts in the event that a dispute arose and (2) that the agreement between Plaintiff and Defendant specifically established the price for additional copies of Plaintiff’s works.” Given those factors, the judge said, the reproductions “supplanted” the original works to the commercial detriment of the copyright holder. NATURE OF WORK Turning to the nature of the copyrighted work, Judge Rosen held that while one of the intended purposes of the photos was to create a factual record of the construction process, “if the photos served only this dry, factual purpose, Defendant presumably could have found other equally effective ways to introduce evidence at the arbitration proceedings.” Moreover, the judge said, instead of having one of its employees take photos of the site, Perini hired a commercial photographer. “Defendant evidently concluded that Plaintiff’s works captured the various stages of the project in a way that no other form of evidence could,” Judge Rosen said. As a result, the judge said, the photos “lie more at the creative than at the functional end of the spectrum of copyrighted works.” AMOUNT AND SUBSTANTIALITY OF USE The third factor “clearly favors” Images, Judge Rosen said, noting that Perini reproduced the photos in their entirety and copied 287 of the 305 available photos. In addition, the judge noted, the copies were made in color, “thereby producing near-exact replicas of the original works.” EFFECT ON MARKET Finally, the judge said, Perini’s unauthorized reproduction “substantially impaired one of the intended markets for the works,” their use in any construction-related disputes. Images is represented by Gary Quesada of Bloomfield Hills, Mich. Perini is represented by Steven A. Roach of Detroit. �; Copyright 2000 Mealey Publications, Inc.

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