Court Holds News Sites Liable for Posting Copyrighted Photos from Social Media...
Donald Trump, Wedding Crasher, Ends Up Being Bad
Copyright News for Esquire.com
by Eriq Gardner DECEMBER 11, 2018 1:56pm PT
Judge rejects proposition that personal images posted on
social media are free grist for use by media companies.
On June 11, 2017, a photograph of President Donald Trump
crashing a wedding a day earlier at his golf course resort in Bedminster, New Jersey, went viral.
Jonathan Otto, a vice president at Deustche Bank, snapped
the photo on his iPhone. He sent the photo of Trump with the bride to another
wedding guest, Sean Burke, who apparently sent it to others, including a
relative of the bride, who posted it on Instagram. That's when the media
discovered it. After the photo appeared on TMZ and CNN and in The Washington
Post and the Daily Mail, Otto texted Burke and asked, "Hey, TMZ &
others using my photo above without credit/compensation. You send to anyone? I
want my cut.”
Subsequently, Otto retained lawyers and sued. On Monday,
he became the beneficiary of a decision from a judge who decided that the photo
that ran on Esquire's website in a story titled “President Trump is the Ultimate
Wedding Crasher" didn't constitute a fair use.
Holding that Esquire's parent company Hearst
Communications is liable for copyright infringement, U.S. District Court Judge
Gregory Woods writes, "Stealing a copyrighted photograph to illustrate a
news article, without adding new understanding or meaning to the work, does not
transform its purpose — regardless of whether that photograph was created for
commercial or personal use."
Hearst certainly argued otherwise by pointing out that
the photo was taken for personal use while here it was used for news. That's
transformative, said the news company.
"The Court has not found any law supporting this
point, and the existing precedent requires the opposite conclusion,"
responds Woods. "Though news reporting is specifically named in 17 U.S.C.
§ 107 as a potential method of fair use, a news reporting purpose by no means
guarantees such a finding. ... It would be antithetical to the purposes of
copyright protection to allow media companies to steal personal images and
benefit from the fair use defense by simply inserting the photo in an article
which only recites factual information — much of which can be gleaned from the
photograph itself. If so, amateur photographers would be discouraged from
creating works and there would be no incentive for publishers to create their
own content to illustrate articles: why pay to create or license photographs if
all personal images posted on social media are free grist for use by media
companies, as Hearst argues here?"
Ruining the incentive to snap photos of weddings? That's
not all the judge has to say on the topic of amateurs who create copyrighted
work only to find media companies exploiting works as if anything posted on
social media is public domain. For when the judge gets to the fourth factor
governing fair use — the effect of the use on the potential market — he basically
upholds anyone's right to be greedy.
Sure, there may be instances when an amateur has no
intention of entering a market, and thus there can be no adverse effect from
misappropriation, but Woods says that's not the case here. Thank you, Harvey
Levin.
"It is clear from Otto’s communications with TMZ and
Burke the morning after the wedding that he did have an interest in entering
the market upon realizing the value of his work," states the order.
"The creator of a work should not be precluded from future profits should
they lack the marketing prowess to capitalize on their work at the time of
creation. Otto’s status as an amateur photographer with an iPhone does not
limit his right to engage in sales of his work."
Of course, from here, the judge goes on to caution that a
fair use analysis is context dependent with emphasis on the facts at play.
Woods aims to set some minds at ease by offering the following disclaimer:
"It is not unreasonable to think that the use could be considered fair in
another matter involving a news publisher’s incorporation of a personal
photograph."
Nevertheless, Donald Trump, wedding crasher, has become
Hearst, copyright infringer.
Here's the rest of the decision, which takes up other
issues including why Otto didn't waive his copyright claim by sharing the photo
with his friend while reserving the question of whether Hearst acted willfully
for trial. That latter issue will help determine what Hearst has to pay in
damages.
If it is willful, Otto guided by his attorneys Richard
Liebowitz and James Freeman can elect statutory damages (up to $150,000 but
more typically $30,000-$50,000). If not, Otto may take actual damages (say,
lost licensing income) and profits attributable to the infringement. Then
again, there's a good likelihood this case now settles and becomes somewhat of
a warning to those in the media business.
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