I’d say he can make out a prima facie case. You might have some defenses other than 120(a), though.
Transformative is part of fair use analysis. It’s not an either/or proposition. You might have a fair use defense, you might not. But fair use is an affirmative defense, which you’d have to prove.
I see where you are coming from. I suspect a court would reject this interpretation because it really makes the word “public” superfluous. If Congress wanted to write the statute to permit photography of every building, no matter how remote . . . it could have omitted the final clause. And courts try to give meaning to every word in a statute.
Barbra Streisand wasn’t able to protect her “right to privacy” when a photo was taken from the air of her house. If the air isn’t considered “public” space, why did she lose? If you read the contents of the ruling in this case, you can see many arguments supporting the idea of airspace being a place the public regularly visits. “The visibility of the yard to the public and the routine nature of air flights renders the expectation of privacy unreasonable.”
As we discussed earlier in the thread, “public place” isn’t defined in copyright law, yet you’ve said a court would reject the following argument: “If the airspace is a ‘public place’ then no building is protected, depending on your definition of “ordinarily visible”…especially in this age of easily accessible aerial photography”
If it’s not defined in copyright law, then what standard are we using? You say “different standards” - ok, I accept that; but then where are these “standards” defined?
Acsenray wrote:
Ok, Acsenray refers to the definition of public space from free speech cases, which is what I also did in the aerial view example above, so where does your definition of “public space” come from?
A more commonsensical definition is all that is required:
Did you read the actual case? It was pretty technical. I’m not going to go into detail, but the elemenst of the torts involved in the case are different from the language in section 120. Moreover, the court also found that she had consented to any intrusion into her seclusion because she had permitted publication of photos showing the same views that she was objecting to in this case, and that if individuals had been identifiable in the shot, the case might have gone to trial. That’s because it is a privacy case.
Moreover, the Court also noted that “The tort is not automatically established or negated based on the location at which the allegedly offending conduct occured.”
There’s a lot more in there, but I’m getting bored.