Photo of Glass Sculpture Integrated in Ceiling a Fair Use

n Neri v. Monroe, 11-CV-429-SLC, 2014 WL 793336 (W.D. Wis. Feb. 26, 2014), the Western District of Washington smashed the hopes of a glass artist by sharply dismissing a pro se copyright action she brought against a design firm, among others, who displayed photos of an entrance hall of a private residence which incorporated her artwork.  The court found the photo display to be fair use.  The judge made his low opinion of the case abundantly clear, saying, “The bottom line is that, after the court has culled out plaintiff’s unfounded legal conclusions, rank speculation and unsupported assertions, the few material facts that remain fall far short of establishing their claim of copyright infringement.”

Quincy Neri was hired to create a glass sculpture that would be installed on an entranceway ceiling of a private residence.  The design firm then used pictures of the completed entrance hall to apply for remodeling industry awards, as well as on their website.  The design firm’s interior designer, who was also a teacher, posted a picture of her students in the entranceway on her website as well.  Neri then proceeded to sue everyone involved with the remodel of the private residence, including the design firm, its owners, its interior decorator, and the photographer they hired to take pictures of the completed entrance hall.

The district court initially ruled that Neri lacked a valid registration in the copyright, but the Court of Appeals for the Seventh Circuit disagreed and remanded the case for reconsideration on the merits regarding copyright infringement.  In this action, the defendants conceded that the copyright registrations were valid, but defended on the grounds of fair use, consent from a joint author, implied license, and lack of damages.

As to be expected based on the judge’s comments above, all of Neri’s claims were dismissed.

The court analyzed the four fair use factors outlined in 17 U.S.C. §107: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the work used; and (4) the effect of the defendant’s use on the mark.  Although the second factor was found to weigh in Neri’s favor, the rest favored a finding of fair use.

The court used the “don’t take more than necessary test” to find that the design firm’s aim in publishing photographs of their own remodeling and architecture work was proper.  Further, any “copying” of Neri’s work that occurred was incidental to this purpose.  Finally, the court found that under the fourth factor, the photographs had no detrimental effect on the market for Neri’s work.  As Neri had never sold or licensed derivative works, the court reasoned that such a market was non-existent.

Despite the finding of fair use, the court went on to discuss why damages would still be unavailable even if infringement could be shown.  Statutory damages were unavailable to Neri because the infringements took place long before she attempted to register a copyright in the works.  There were also no actual damages, since Neri could not provide any evidence that the defendants profited from the photographs.  The judge also tossed aside her claim that she could have commanded a $5,000 licensing fee for rights to photograph the sculpture, and went so far as to say, “damages must be proven, and not just dreamed.”

The takeaway from this case is that an artist cannot prevent a work from being photographed and displayed when the work is attached to a building and used in a limited and non-commercial way.  Interior designers may be found under fair use to be able to display photos of a work from a project in which they contributed alongside a glass artist. This case serves as reminder to  artists that rights under copyright are not absolute.  In this case the artist may not have gotten the message, despite the court’s clear views, as the latest word is that Neri has filed to appeal this decision.