Foto Fair Use Defense Rejected In Fortune Mag Copyright Spat

A rare look at a court’s application of the fair use defense in the context of an online photography case.

While most creatives have suffered in the “digital age,” few groups of artists have seen their industry decimated like those in the photography sector. Technological advances that allow any yahoo with an iPhone to craft a halfway decent image, a monetary and power suck that has depleted the once hallowed and relatively profitable world of journalism, and easy online right-clicking and save-as-ing have turned their world upside down. The damage is so severe that many professional photographers have simply packed up their lenses and retired. And while “photographer” may be the given profession in many an unemployed millennial cousin’s LinkedIn profile, the actual rate of young people embarking on a career as a professional photographer is vanishingly small. And so we live in a world in which there is a smaller, aging pool of people who dedicate their lives to the creation of beautiful, provocative, informative, technically advanced photography. (Rest assured, though, that flat, oversaturated, poorly filtered pictures of sunsets and bowls of ramen continue to be created on a massive scale.)

Those photographers that are still kicking have had to deal with not only a waning industry but a pervasive and virulent online piracy problem. It is not uncommon for prolific and talented photographers to have had their work exploited online without permission dozens or hundreds or thousands of times. And while many of these exploitations are your basic home blogger tapping away in nana’s basement, many more are commercial entities like banks, car dealerships, highly trafficked online news and culture sites, popular listicle farms, and even law firms that should all know better. Yet, in many, many cases these companies would rather take the risk of copying an artist’s photograph off of the internet than pay a reasonable license fee to publish the work.

These artists were left with little option but to start bringing lawsuits to address the publication of their work without consent, which was not an easy task given the expense of federal copyright litigation and the less-than-astronomical value of many of the claims. A large number of the cases that were litigated resulted in favorable outcomes for the photographers, but the constant trench warfare that is litigation was not much to the artists’ liking, and, even worse, a few of the attorneys assisting the artists did not have the requisite experience to handle this level of litigation. So, even though many of the artists had very strong cases, the results have not been uniformly positive.

One layer of shade that has been thrown at photographers has been that the vast majority of their cases settle. This fact, the logic goes, somehow indicates that the photographers’ claims are not strong on the merits. Of course, the vast majority of all types of cases settle, and one reason cases settle is that the infringer recognizes that their defenses are weak. In fact, if you are trying cases all the time you either are not reasonable in negotiation or have such shoddy claims or defenses that the other side has no choice but to proceed to trial. Settlement, you see, is a good thing. The only downside is that settlements are often reached early and before the court weighs in on certain claims and defenses to provide guidance as to whether they are colorable.

As a result, certain attorneys who specialize in representing infringers continue to volley structurally poor and legally unfounded defenses at every photographer who brings a claim. The most common among these, most likely due to the fact-intensive nature of the defense and almost comically scattershot manner in which the courts have applied same, is the fair use defense.

A glimmer of insight cracked through last week, however, when we received the well-reasoned opinion in Michael Grecco Productions, Inc. v. Valuewalk, LLC. While not yet at the trial stage, this case did proceed through the summary judgment phase, which is itself a rare feat. Grecco, a professional photographer who specializes in celebrity portraits and editorial content for titles like Vanity Fair (and whom, in full disclosure, my firm has represented from time to time, though not in this case), alleged that he created a photograph of Jeffrey Gundlach, a bond trader, for Barron’s that was then used without consent by another financial publication, Valuewalk. The parties both moved for summary judgment and Judge Gregory H. Woods considered and roundly discarded the fair defense, finding it unsuitable for consideration by the jury.

The fact that Valuewalk would even advance the fair use defense shows how far it has leached beyond what was supposed to be a carefully delineated realm. The court notes that the fair use defense is supposed to apply to benefit the public in rare situations where the public’s interest outweighs the author’s rights in his or her work. A for-profit financial publication copying without permission a photograph that its rival paid to have created does not seem to fit within this context.

Sponsored

The court lays out the fair use factors under 17 U.S.C. § 107: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work, and then applies them to Valuewalk’s copy-and-pasting of Grecco’s photograph.

These factors, the court finds, make clear that as a matter of law the fair use defense fails when proffered in a case of online publication in the same context in which the original was published. It notes that Barron’s was “[u]sing a photo for the precise reason it was created does not support a finding that the nature and purpose of the use was fair.” This reasoning should apply to just about every online publication case that publishes a photograph without consent and in context.

The clear inapplicability of the defense did not stop Valuewalk from arguing that its use of Grecco’s work was “transformative” and thus fair use. Notably, as I’ve asserted in the past, the word transformative appears nowhere in the statute and was for the most fabricated with only passing deference to the statute’s text. This makes it ripe for sowing confusion and potential court error, but Valuewalk was not so lucky here.

It asserted that it transformed Grecco’s work by changing its size and adding to it text. While this is not transformative in the least, the Copyright Act does address such conduct, stating that the creation of derivative works by alteration of an author’s work violates the author’s rights under Section 106. Valuewalk is essentially arguing that its use should be found “fair” because it violated Grecco’s 106 right related to the creation of derivative works.

Despite Valuewalk’s claim of transformation, the court in the end finds that while “the photos are not identical, the effect on any viewer is the same: the subject of the image, Mr. Gundlach, appears untouched and clearly visible.” Fair use is found out of bounds and while this opinion does present a rare look at a court’s application of the defense in the context of an online photography case, it will most likely do little to persuade infringers’ attorneys to eschew the inapplicable defense in the future.

Sponsored


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.