The opinion of the court was delivered by: GLEN CONRAD, Magistrate Judge
Plaintiff, Robert E.L. Shell ("Shell"), brings this action for
copyright infringement, pursuant to 17 U.S.C. § 101, et seq.
Defendant has moved to dismiss the case. For the reasons set
forth below, the defendant's motion to dismiss will be granted.
After Marion Franklin, a model and photographer's assistant to
Shell, died on June 3, 2003, investigators from the City of
Radford Police Department arrived at Shell's studio and received
permission from Shell to search the studio. The investigators
seized a computer, digital cameras, photographs, and a memory
card used to store pictures. Investigators later seized
additional items from Shell's studio pursuant to a search
warrant. Shell was arrested on charges related to the death of
Marion Franklin on June 7, 2003.
Detective Robert A. Wilburn, one of the investigators,
downloaded a picture of Marion Franklin from Shell's website and
included it on the front of his investigation notebook as an
"inspiration" for his investigation. Detective Wilburn later
removed the picture from his notebook. Detective Wilburn also
made copies of certain photographs and included some of those
copies in his investigation notebook. He has showed the photographs and copies
to the Virginia State Police, experts retained by the Virginia
State Police, and an Assistant United States Attorney. The City
of Radford continues to retain custody of all the items seized
Shell registered the works in December of 2003. On July 24,
2004, Shell filed suit against the defendant alleging that the
defendant infringed his copyright in certain original works by
reproducing the copyrighted works in copies, by creating
derivative and composite works from the copyrighted works, and by
displaying the copyrighted works and derivative/composite works
publicly following their seizure, all in violation of
17 U.S.C. § 106. On September 14, 2004, the City of Radford filed this motion
to dismiss. Because the parties have included the declarations of
Detective Wilburn and Shell as well as certain exhibits, the
court will treat this motion as one for summary judgment.
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is properly granted if there is no genuine issue as to
any material fact, viewing the record in the light most favorable
to the non-moving party, and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Terry's
Floor Fashions, Inc. v. Burlington Industries, Inc.,
763 F.2d 604, 610 (4th Cir. 1985). For a party's evidence to raise a
genuine issue of material fact to avoid summary judgment, it must
be "such that a reasonable jury could return a verdict for the
non-moving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Shell's complaint focuses, in large part, on the City of
Radford Police Department's seizure and retention of his computer
hard drive and the images contained therein. Shell contends that
he is unable to earn his living because the police department is
preventing him from accessing his work. To the extent that Shell alleges copyright infringement based upon the
defendant's continued retention of his computer hard drive and
the images contained therein, his claim is outside the scope of
the Copyright Act. The Act provides that the owner of a
copyrighted work has the exclusive right to reproduce the work,
prepare derivative works based upon the work, distribute copies
of the work to the public, and display the work publicly.
17 U.S.C. § 106. The Act does not appear to cover a situation where
a person other than the copyright owner simply possesses the
With respect to the use of the particular works themselves, the
defendant entreats the court to hold as a matter of law that law
enforcement officers may copy and distribute copyrighted
photographs and other pictorial media seized in the course of an
investigation for use in that investigation. In the alternative,
the defendant contends that the fair use doctrine applies to its
use of Shell's photographs and other works. Courts have
repeatedly emphasized that when a court determines whether a
particular use is a fair use, "any per se rule is inappropriate."
Bond v. Blum, 317 F.3d 385, 394 (4th Cir. 2003) (citing
Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 577 (1985)). Because each use must be considered
individually, the court will deny the defendant's request for a
blanket exception to the copyright laws for law enforcement
The Copyright Act describes the fair use doctrine as follows:
[T]he fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or by
any other means specified by that section, for
purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom
use), scholarship, or research, is not an
infringement of copyright. In determining whether the
use made of a work in any particular case is a fair
use the factors to be considered shall include
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market
for or value of the copyrighted work.
The fact that a work is unpublished shall not itself
bar a finding of fair use if such finding is made
upon consideration of all the above factors.
17 U.S.C. § 107.
The determination of fair use is "a mixed question of law and
fact." Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 560 (1985). In setting forth the four factors listed
above, Congress chose not to adopt a bright-line approach,
instead requiring a case-by-case analysis under an equitable rule
of reason approach. Sundeman v. The Seajay Society, Inc.,
142 F.3d 194, 202 (4th Cir. 1998). Thus, the four factors are to
be considered in the aggregate. Id.
With regard to the purpose and character of the use, Shell
concedes that the defendant's use is not commercial in nature.
The defendant intends to use Shell's copyrighted works for their
evidentiary and investigatory value, not for their expressive
content. See Bond v. Blum, 317 F.3d 385, 389 (4th Cir.
2003), cert. denied, 540 U.S. 820 (2003) (holding that the use
of an unpublished manuscript in a child custody hearing was a
fair use because the use was solely for its factual content, not
for its mode of expression). Shell does allege, however, that
several large prints were made of certain photographs and were
placed in an investigator's office in such a way that they could
be seen by the general public. Placing enlarged copies of the
works in the offices of law enforcement officials would also
serve an investigatory function, however, when those works may
relate to the alleged commission of a crime, regardless of
whether members of the public might be able to view the works if
they happen to enter an investigator's office.
When considering the second factor under § 107, courts focus on
"the extent to which a work falls at the core of creative expression." Bond,
317 F.3d at 395. This factor weighs against a finding of fair use because the
majority of Shell's works appear to unpublished ...