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Calkins v. Playboy Enterprises International, Inc., et al.

The district court held that Playboy’s publication of a high school photograph of a Playmate, taken in 1996 and copyrighted by plaintiff, on the Playmate’s bio page in its magazine was a fair use.

The plaintiff is a photographer specializing in family portraits, weddings and high school pictures who took pictures of Playmate Colleen Shannon when she was in high school and sold the pictures to Shannon. Several years later, Playboy published a smaller, cropped version of one of the photos on Shannon’s Playmate data page.

Playboy admitted that it published the photograph without permission, but argued that its publication constituted fair use. Applying the four-factor fair use analysis, the court found that Playboy’s use was commercial but that its use was “incidental and less exploitative in nature than more traditional types of commercial use” because Playboy was not using the photograph to directly promote sales of its magazine and was not trying to profit by selling the photograph.

The court also held that Playboy’s use was transformative because Playboy used a smaller version of the original photograph and used it for an entirely different purpose, i.e., for personalizing the Playmate page by providing insight into her background and interests. The court ruled that Playboy’s use differed from the plaintiff’s use – which was to sell photographs to Shannon to be used as gifts to her family and friends. “Thus, because Playboy used the photograph in a new context to serve a different function (inform and entertain Playboy readers) than the original function (gifts for family and friends), Playboy’s use did not supersede the function of the original photograph, and therefore Playboy’s use is transformative.”

Regarding the second factor, the district court held that the nature of the use, which the court said was creative, weighed slightly against a finding of fair use, but the third factor – the amount and substantiality of the portion used – did not weigh for or against a finding of fair use because Playboy used only as much of the original work as necessary for its purpose.

The court held that the final factor – the effect of Playboy’s use on the market for the plaintiff’s work – was the single most important element of fair use, and concluded that because the plaintiff is not in the business of reselling photographs of its clients to third parties, Playboy’s use of the photo in its magazine did not harm the plaintiff’s market for the photos. The court rejected the plaintiff’s argument that Playboy’s publication of the photograph caused it to lose revenue in the form of lost sales of the photograph and said “if anything, widespread publication of the photograph would have a positive effect on the potential market for the original photograph by increasing demand for reprints.”