Photo Attorney

Jan 10, 2006

Editorial Use May Not Always Be Fair Use

Copyright law includes the doctrine of "fair use" that allows unauthorized use of copyrights in certain circumstances. The courts recognize that free expression and avoiding law suits over minor issues are more important than protecting intellectual property rights. The doctrine of fair use means that copying will not infringe a copyright when it is "for purposes such as criticism, comment, news reporting, teaching, scholarship or research."

Newspapers generally use copyrighted materials freely, depending on fair use. But they may have gone too far this time.

Chris Harris is a photographer who has shot for The New York Times and Time and Newsweek magazines. He now teaches mass communications at a university in Tennessee and leases photos from his collection shot over a 25-year career. The San Jose Mercury News took one of Harris's photos, removed the copyright notice from his photo (which may violate Section 1202(b) of the Digital Millennium Copyright Act), and used it with a book review without Harris's permission.

The Mercury News claimed it was a "fair use" and is common practice for metropolitan newspapers to use copyighted photos with book reviews without permission. The newspaper's motion for summary judgment, asking that the case be dismissed, was denied on January 2, 2006. Judge Stephen Breyer of the United States District Court for the Northern District of California held:

Defendant argues that use of the photo was the equivalent of a pictorial quotation from the book and similarly falls under the fair use exception. Yet the photograph was obviously marked as a copyrighted photograph in the book . . . . As a result, the Court cannot say as a matter of law that use of a copyrighted photograph in a book review, in which the book clearly states that the photograph is copyrighted, constitutes fair use. Accordingly, defendant’s motion for summary judgment is denied.

Robert A. Spanner, lead attorney for Harris, explained that,
A photographer's right to limit distribution and reproduction of his or her copyrighted photographs is a fundamental tenet of copyright law, and the notion that a newspaper can override that right and freely reproduce and distribute – without a license and for free – photographs which the photographer had licensed to a book publisher for a fee, would obviously be a matter of grave concern to the photographers’ profession. Mr. Harris stood up for the rights of his fellow photographers because he believed it was the right thing to do, and we are gratified that his efforts have been vindicated.

The trial is scheduled to begin January 20, 2006.

Cheers to Mr. Harris for standing up for his rights and doing what he can to protect his work. We all may benefit from the trail he is blazing.

Take my advice; get professional help.