Is the News Media’s Use of a Portrait Photo Fair?

When tragedy strikes, new agencies often rush to find photos to accompany the story.  Such was the case during the recent horrible tragedy in Tucson.  One of the victims was a nine year old child.  So a few media organizations used a portrait of the child and her mother taken by a professional photographer when reporting about the child’s death.  As Techdirt reports, the photographer hired an attorney to pursue claims of copyright infringement against the news groups.  But some thought it wasn’t appropriate for the photographer to complain. While the ethical issues won’t be addressed here, the question of whether the media’s use of the photograph was an infringement is an important legal matter.

Some contend that the use of the photo was a fair use, which is a defense to infringement.  My article on fair use provides the background of the law.  Many cite to the four factors identified in 17 USC 107 to evaluate whether a use was fair.  But courts aren’t limited to them, because the statute states that “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include . . .” meaning that a court can use other aspects to make its decision.  And they often do.

Prior cases are illustrative of how some courts have handled similar situations.  First is the case of Fitzgerald v. CBS Broadcasting, Inc., 491 F. Supp. 2d 177 (D. Mass. 2007).  There, the court found that use of a freelancer’s photo of a mobster being arrested in a television news report was not a protected fair use under copyright law.  Christopher Fitzgerald had taken the only public pictures of mobster’s arrest in 1995.  Fitzgerald licensed the photos to several news organizations and also collected settlements in several cases of alleged copyright infringement of the photos.

One copyright infringement settlement was with CBS, which had used the photograph in a Boston television news report and on a broadcast of “60 Minutes.”  After the settlement, CBS took several steps to ensure that the photographs were not accidentally broadcast again, including instructing the station’s librarian and other staff to get rid of any copies.

Several years later, two CBS television stations in Boston broadcasted a report about the sentencing of a member of the mobster’s gang.  Despite CBS’s earlier efforts, Fitzgerald’s photo of the mobster’s arrest again was shown without permission.  Fitzgerald sued, claiming that the broadcast violated his copyright.  CBS argued that it was protected by the fair use doctrine, which allows the use of copyrighted material without permission in certain circumstances.

The court found that while some factors favored CBS’s fair use argument, the most important ones did not.  The court concluded that CBS’s use was not fair.  Specifically, the court found that although the gang member’s sentencing was newsworthy, and the mobster’s arrest was related to it, the court determined that the overall “purpose and character” of the broadcast would not qualify the use under the “fair use” doctrine because CBS is a commercial entity and its use did not add any new creative or editorial message to the information conveyed by the original photograph.

Another similar and significant fair use case was Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000).  In Nunez, a newspaper published without permission three of Nunez’s photographs of a beauty pageant winner.  The photos initially were taken for the beauty pageant winner’s modeling portfolio, before winning the contest.  Prints of the photos were distributed prior to the pageant.  After the model won the beauty pageant, a controversy arose about the nude and semi-nude photos.

The Nunez court found that the newspaper was a commercial enterprise and that the use of the photos impacted sales of the paper.  However, the court stated that the newspaper “transformed” the use of the photos by using them to inform the public about the controversy of the nude photographs.  The court held that the informative use, the good faith of the newspaper in obtaining the photos, and the difficulty in reporting the news without the photos constituted fair use.

While the court explained that the reproduction of the photographs did not threaten Nunez’s right of first publication because the photos had already been shown on the evening news, it noted that the newspaper’s use of the photographs had little to no impact on the market for Nunez’s photographs because a newspaper reproduction is not a market substitute for an 8” x 10” glossy.   Finally, the court emphasized that generally reproduction by newspapers of professional photographs is infringement.   However, if the photo itself is newsworthy, the photo was acquired in good faith, and the photo had already been disseminated, a fair use defense exists.

However, some courts have found fair use when a photograph has been used by news organizations. See my October 25, 2006 blog post on Chris Harris’ case for an example. However, it’s clear that the unauthorized use of a photograph is much more likely to be deemed a fair use when the photograph itself is newsworthy.

In sum, the law related to fair use is highly dependent on facts.  So it’s difficult to ascertain what a court would do with the photographer’s claim for use of the photo of the child who was killed in the Tucson case.

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