magazine’s copyright from which the images were taken. The court rejected this argument and
allowed a statutory damage award for each image on the grounds that each image had an
independent economic value on its own, each image represented “a singular and copyrightable
effort concerning a particular model, photographer, and location,”^97 and the defendant marketed
each one of the images separately. The court awarded statutory damages of $500 per image, for
a total damage award of $3,737,500.^98
(g) The Free Republic CaseEven where there is a direct volitional act on the part of a website operator in copying
copyrighted material onto its site, difficult questions relating to First Amendment and fair use
rights may arise, particularly where the Web is used to facilitate free ranging discussion among
participants. For example, in 1998, the Los Angeles Times and The Washington Post filed a
copyright infringement lawsuit against the operator of a website called the Free Republic. The
site contained news stories from dozens of sources (including the plaintiffs), posted both by the
operator of the site and its users, and users were allowed to attach comments to the stories.^99 The
plaintiffs argued that, because verbatim complete copies of their news stories were often posted
on the website, it was reducing traffic to their own websites on which the articles were posted,
and was harming their ability to license their articles and to sell online copies of archived
articles.^100 The defendants raised defenses under the fair use doctrine and under the First
Amendment.^101 The defendants moved for summary judgment on all claims and the plaintiffs
cross moved for summary judgment on the defendants’ defense of fair use.
The court rejected the defendants’ fair use argument and ruled that the defendants might
be liable for infringement.^102 The court ruled that the first fair use factor (purpose and character
of the use) favored the plaintiffs, noting there was little transformative about copying the entirety
or portions of the articles, since the articles on the defendants’ site served the same purpose as
that for which one would normally seek to obtain the original – for ready reference if and when
websites visitors needed to look at it.^103 The court also rejected the addition of commentary to
the articles as favoring the defendants under the first factor, noting that the first posting of an
article to the site often contained little or no transforming commentary, and in most cases it was
not necessary to copy verbatim the entire article in order for users to be able to comment on the
(^97) Id. at *18-19.
(^98) The plaintiff requested an astronomical $285,420,000 in statutory damages ($20,000/image for 5776 images
that were not willfully infringed, and $100,000/image for 1699 images that were willfully infringed).
(^99) Los Angeles Times v. Free Republic, 54 U.S.P.Q.2d 1453, 1455-56 (C.D. Cal. 2000).
(^100) Id. at 1457.
(^101) Id. at 1454-55.
(^102) The court limited its opinion to the availability of the defenses on which the defendants had moved for summary
judgment. The court stated it was expressing no opinion as to whether, “given that the ‘copying’ of news
articles at issue in this case is to a large extent copying by third-party users,” the plaintiffs could prove a claim
against the defendants for copyright infringement. Id. at 1458.
(^103) Id. at 1460-61.