Yesterday, Authors Alliance submitted an amicus brief in Sicre de Fontbrune v. Wofsy, joined by the Electronic Frontier Foundation, The Project Gutenberg Literary Archive Foundation, and Public Knowledge. We have been covering this case on our blog over the past few weeks, and are delighted we could share our perspective with the Ninth Circuit Court of Appeals as it considers whether to grant Wofsy’s request for a rehearing. You can read our full brief below.

Our brief makes two principal arguments for why the Ninth Circuit should re-hear the case. First, we explain that the case has serious First Amendment implications which could affect the free speech rights of countless U.S. authors and members of the public. Next, we argue that the errors the original panel of Ninth Circuit judges made in its fair use analysis are serious enough that the Ninth Circuit should reconsider whether Wofsy has a viable fair use defense to Sicre de Fontbrune’s infringement claim.

In our fair use argument, we drilled down further on the various errors the panel made as well as the serious ramifications its decision could have on authors’ ability to rely on fair use to create new works of authorship. We argue that the panel failed to consider the First Amendment limitations on copyright protection: the photographs in question exhibited minimal creativity, which the court should have considered as part of its analysis of the nature of the works at issue. We also argue that the court erred by disagreeing with the lower court’s finding that Wofsy’s use was aligned with scholarship and research—prototypical examples of fair use set forth in the Copyright Act. Finally, we explain that fair use is a crucial First Amendment safeguard, which the panel should also have given more weight to in its decision. 

Authors Alliance extends our thanks to Kathryn Thornton at Ropes & Gray for providing support on this brief, as well as our fellow amici for their feedback and support.