Photo Credit: Mark McCollom, CRPAA Founding Member

Camera mounted drones are increasingly being used to take images (still pictures and/or videos) of flyover objects. Usually, the person operating the drone will be considered the copyright owner of such images, except where the person who is flying the drone and taking the images is doing so within the scope of his or her employment (a work made for hire). An image that will be distributed or displayed is preferably marked or labeled with a proper copyright notice that identifies the owner, e.g., Copyright 2017 John Doe (or legal entity).

This is because the copyright owner of an image so marked or labeled has the exclusive right to control reproduction and distribution of the image. The marking puts others on notice that blatant copying of a copyrighted image without permission of the owner is a copyright violation.   However, there are exceptions. One of these exceptions is “fair use”.

Four factors considered in determining whether a use is “fair use” include, broadly speaking: (1) whether a copy of the image has been modified to add something new to (or transforms) the original image into a different aesthetic expression – the more transformative the less the other factors will be significant; (2) the nature of the original image vs. the copy; (3) the substantiality of use and how much the image is altered or changed; and (4) the effect on the market for or the value of the original image.

An image that is NOT altered will typically be considered non-transformative. That said, in one case, thumbnail images of concert posters were considered transformative as historical artifacts vs. artistic expression and promotion, i.e., a different purpose. In comparison, painting over / modifying a preexisting image in a manner that changed the message and meaning of the original, was considered transformative.

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Randall A Notzen, Esq.