Nilay Patel

Copyright law: no one understands it

So as I noted in my breakdown of Apple’s lawsuit against Samsung, it looks like Apple’s law firm made an embarrassing copyright mistake: they used photos of Samsung products taken by Myriam Joire and AndroidCommunity without permission. Hell, they even cropped AndroidCommunity’s watermark.

That’s more than just a minor faux pas; I’m pretty sure it’s actionable copyright infringement. Seriously! While everything that judges and courts produce is in the public domain, there’s no rule that says lawyers and law firms are immune from copyright law. There are even a few firms out there that put copyright notices on their documents to warn other attorneys against copying their work, and the consensus seems to be that if a law firm sued another law firm for copying legal documents, they’d probably win.

I was so curious about this that I called up University of Kentucky law professor Davida Isaacs, who wrote that first article linked, and talked it through with her — it seems like a fairly unexplored area of the law. While we both agree that there’s no straight answer, it does seem as though this type of copying wouldn’t pass the general four-factor fair use test, especially since the “purpose and character of the use” is not one that required reference to these photos — unlike, say, some attempt to criticize the photos themselves. Apple’s law firm could have easily and cheaply taken their own pictures of Samsung devices to serve the same purpose. And think about this: now that Apple’s used these images in its complaint, they’re being republished everywhere without any compensation to the authors – which isn’t the result of Apple’s direct efforts, but significantly diminishes the possibility that anyone else will pay for the pictures.

All of this serves to highlight a point I seem to be making a lot lately: the norms of digital copyright usage don’t really have much to do with copyright law as it’s written. It’s a little galling when the US copyright system is so out of touch with reality that high-priced IP law firms are making errors like this in high-profile complaints. I’d bet that some overworked associate was tasked to find similarities between Samsung and Apple’s products, and they made the same mistaken assumption most people make — they looked at some photos on the internet and thought they were okay to use because it “wasn’t commercial” or because “it’s fair use” or some other poorly-understood reasoning. I hear things like that from readers in emails, comments, and tweets all the time, and they’re almost always wrong. That’s just not how our system actually works.

Now, I don’t think this is a huge deal, especially compared to the magnitude of Apple’s complaint against Samsung. In the broad sense we all use images in this way on a daily basis. But it certainly does look bad, especially in the context of a lawsuit that strenuously argues against the misappropriation of intellectual property. Apple’s law firm would do well to apologize to Myriam and AndroidCommunity for using their work without permission and swap out the images in the inevitable first amended complaint. That’s the savvy PR move, anyway.