United States District Court, W.D. Virginia, Roanoke Division
January 10, 2005.
ROBERT E.L. SHELL, Plaintiff,
THE CITY OF RADFORD, VIRGINIA DEPARTMENT OF POLICE, Defendant.
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 and the
photographs and other works are a stylized mode of expression.
With regard to the third factor under § 107, the amount and
substantiality of the portion used in relation to the work as a
whole, it appears that the City of Radford Police Department has
used a significant portion of the works it seized from Shell.
Furthermore, with regard to the copying of individual works, the
police department has used these works in their entirety. But
once again, the use was not of the expressive content of the
photographs or other works, but for their factual content related
to the criminal investigation.
The fourth factor, the effect of the use upon the potential
market for or value of the copyrighted work, is "undoubtedly the
single most important element of fair use." Bond,
317 F.3d at 396 (quoting Harper & Row, supra, 471 U.S. at 566). This
factor focuses on whether "some meaningful likelihood of future
harm [to the market for or value of the copyrighted work] exists.
If the intended use is for commercial gain, that likelihood may
be presumed. But if it is for a noncommercial purpose, the
likelihood must be demonstrated." Ass'n of American Medical
Colleges v. Cuomo, 928 F.2d 519, 525 (2nd Cir. 1991)
(quoting Sony Corp. of America, 464 U.S. 417, 451 (1984)).
Shell contends that the seizure and copying of Shell's original
works has destroyed his ability to complete a book project for
which the seized works were to be source material and that the
continuing delay in returning the works to him "will diminish the
value and salability of the works." As the defendant points out,
however, it is possible that any photographs used during the
investigation could actually increase in value because of the
publicity surrounding Shell's criminal prosecution. Any delay in returning the works to Shell, a renowned photographer with a
long-established reputation, without any otherwise improper use
of the works, would not appear likely to result in future harm to
the market value of Shell's photographs and other works.
After considering the four factors in the aggregate, the court
finds that the fair use doctrine does apply to the City of
Radford Police Department's use of Shell's photographs and other
works. As long as the use remains solely for the dual purposes of
permitting City of Radford law enforcement officers to properly
investigate allegedly criminal acts and to use that evidence in
any subsequent criminal proceedings, it will be a fair use and
not a violation of the Copyright Act.
The defendant also contends that Shell's complaint should be
dismissed because there was no copyright registered or in
existence for the works at the time of their seizure. Detective
Wilburn originally seized the photographs and other materials
sometime between June 3 and June 7, 2003. Shell did not register
his copyrights until December 2003. The Copyright Act does not
permit an award of statutory damages or attorney's fees in
certain cases where the alleged infringement of copyright in an
unpublished work commenced before the effective date of its
registration. 17 U.S.C. § 412. The court need not address this
issue, however, because of the application of the fair use
doctrine to the use alleged here.
The Clerk of Court is directed to send copies of this
Memorandum Opinion and the accompanying Order to all counsel of
For the reasons stated in the accompanying Memorandum Opinion,
it is hereby
that the defendant's motion to dismiss is GRANTED.
The Clerk of Court is directed to send copies of this Order to
all counsel of record.
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