A transformative purpose fair use finding

Wong v. Village Green Owners Association, No. CV 14-03803, 2015 WL 12672092 (C.D. Cal. Mar. 20, 2015)

This transformative fair use case just showed up in my Westclip search.  Wong, who owned a unit in Village Green, prepared a National Historic Landmark nomination on behalf of VGOA, a homeowners association, which subsequently posted the nomination on its website. Wong sued for copyright infringement, and the court found fair use.

Wong prepared the NHL nomination on her own initiative, knowing that VGOA wouldn’t pay her, because she believed that, “[f]rom a moral viewpoint, [she] had no choice.” The nomination consists of a 78-page form and 38 pages of photographs. It contains “purely factual information, such as information about the property’s location, the structures on the property, the materials used to build the property, and its architecture, history, and impact and legacy on the community.” The Village Green became a certified National Historic Landmark in 2001.

Since 2005, Wong has made the nomination available for free to the general public through her website. Another copy is also available for free to the general public through the National Park Service’s website, and Wong understood that the general public would eventually have access to the document for free while she was preparing it.

The court found that VGOA’s use of the nomination as an “Important Document[]” on its website was transformative. Wong’s purpose in making the work was to obtain a NHL certification on behalf of the Village Green, which was granted.  VGOA’s purpose in posting the document was “so the Village Green community and the general public may have access to the document as an information and educational resource.” This substantially different purpose weighed heavily in favor of fair use.

VGOA’s use was also entirely noncommercial: VGOA neither charged for nor received profits from or revenues from the use.  The tax benefits VGOA received from the certification decision were irrelevant. Anyway, even counting those benefits wouldn’t render VGOA’s use of the nomination commercial, in the sense of “unfair[ly] exploit [ing] the monopoly privilege that belongs to the owner of the copyright.” Village Green, as a National Historic Landmark, was eligible for a tax break, but Wong, as an individual, was not.

Nature of the work: highly factual, favoring fair use. Amount used: the whole thing, which was reasonable in relation to the purpose of the copying, so this factor didn’t weigh in favor of either party.

Market effect: there was none because the nomination had no market value and Wong already made it available for free, as did the NPS.  Although someone had to pay for the work’s preparation, the fourth fair use factor “has nothing to do with the cost of preparing the copyrighted work.”