In this digital age, electronic evidence is ubiquitous. Websites, blog postings, social media pages and emails abound. Even in the “real world,” a video or still camera is almost always at hand – most smartphones and tablets have such a function. For lawyers, these materials are rich with potential evidence in a wide variety of cases.
But what about rights to copyright? Under the Copyright Act, copyright vests as soon as copyrightable expression is fixed in a tangible medium ─ no registration being required. As soon as someone snaps a picture (or videos an event) on their iPhone, they are an author and hence copyright owner.
Is a lawyer who gathers such evidence and submits it in a court or arbitration proceeding without permission an infringer?
Two recent cases in the Second Circuit have fact patterns illustrative of how copyrighted materials can be used as evidence. Hollander v. Steinberg, 419 Fed.Appx. 44 (2d Cir. 2011) and Scott v. Worldstarhiphop, Inc., 2011 WL 5082410 (S.D.N.Y. 2011). These cases strongly suggest that such use will often be protected by the doctrine of fair use, codified at 17 U.S.C. § 107.