Shell v. DeVries, et al., USCA Tenth Circuit

A plaintiff filed suit against individuals who copied content from the plaintiff’s web site and used the copies as evidence in unrelated litigation without her permission. The defendants obtained a judgment on the pleadings that their reproduction of the pages from the web site constituted fair use. On review, the Tenth Circuit declined to follow the Ninth Circuit and rule that use of copyrighted material in a judicial proceeding is per se fair use and instead applied the four fair use factors set forth in the Copyright Act. After examining the record, the district court’s analysis, and the plaintiff’s arguments, the court concluded that defendants’ reproduction of the pages from the plaintiff’s web site constituted fair use.

A federal district court in Michigan came to the same conclusion in a similar case in which a plaintiff, who was a party to a parental termination proceeding, filed a copyright infringement suit against a child welfare worker who copied parts of a book written by the plaintiff and submitted them to the judge overseeing the parental termination proceeding. The Michigan district court also applied the four fair use factors from the Copyright Act and found that the defendant’s use was a fair use. See Sturgis v. Hurst, et al., E.D. Michigan, December 4, 2007.