Saturday, February 1, 2014
Sourcing photos, part 2: Fair use arguments
The battle lines have been drawn between copyright maximalists and those who believe in a liberal interpretation of fair use.
The maximalists don’t believe in fair use applications such as derivative works and educational purposes. They want to stop all unauthorized uses of their photos or at least get the users to pay up for the privilege.
Fervent believers in fair use, such as myself, think the public benefits greatly from the freedom to rework, embellish, interpret and comment on copyrighted images. We think legislators, Internet services and others should keep “fair use” top of mind when considering copyright law, especially for non-commercial uses.
Check out the overview of fair use from Stanford University, written by Rich Stim.
Earlier this week, I wrote about two photos used in some recent online ads. This would not be a fair use application if the photos were used without authorization. The ads are clearly using the photos for commercial purposes.
Other instances are not so black and white.
Some new media organizations argue that many photos they gather online are in the public domain.
Twitter site @HistoryInPics makes that claim for the historical photos it posts, The Atlantic reported. But it’s at least guilty of bad netiquette.
“They don’t provide sources for the photographs or the captions that accompany them. Sometimes they get stuff wrong and/or post copyrighted photographs,” writes Alexis Madrigal, senior editor of The Atlantic.
Another popular website, BuzzFeed, makes fair use and public domain claims for many of the cute animal photos and similar meme-ready images it collects online, The Atlantic says.
At the same time, copyright holders have gone to court to wring huge awards from those who use their images without permission.
In November, a federal jury ordered two media companies to pay $1.2 million to a freelance photojournalist for their unauthorized use of photos he posted to Twitter, Reuters reported.
The jury found that Agence France-Presse and Getty Images willfully violated the Copyright Act when they used photos Daniel Morel took in his native Haiti after the 2010 earthquake.
The award seems excessive. The jury ended up making Morel “the best paid news photographer on the planet,” Getty’s attorney said.
In January, the Associated Press issued a cease-and-desist letter to George Zimmerman for trying to sell a piece of art that appeared to be based on an AP photo. Zimmerman, who was acquitted of murder in the death of Trayvon Martin, was attempting to sell the painting to help pay his legal bills, according to media reports.
Zimmerman’s art is clearly fair use. He may have used the AP photo as inspiration, but he made significant changes to it, including the addition of political commentary. (See articles by the AP, Daily Mail and Legal Insurrection.)
In 2011, the AP successfully sued artist Shepard Fairey for his iconic “Hope” poster featuring then presidential candidate Barack Obama. Fairey claimed fair use, but ultimately settled the case.
In a fitting twist for our remix culture, that “Hope” poster has now been reworked by artists to parody the Obama administration for its NSA spying scandal, according to the Los Angeles Times.
Photo: Side-by-side comparison of George Zimmerman artwork and AP photo.