Hit & Run

Pray That The New York Times Loses This Stupid Copyright Case

Gray Lady tries to clamp down on fair use of images in a way that might end up loosening standards.


The New York Times isn't just the most presitigious paper on the planet; it's one of the most bullying, too.

That's the conclusion I think most of us would draw from a great column written by former Reason Editor Virginia Postrel.

The background: War Is Beautiful is a book by David Shields that argues the Times systematically glamorizes war by the way that it depicts armed conflicts and their aftermath. Shields licensed several dozen images and does close readings of them. But he also included thumbnail versions of the images too.

The Times claims that the tiny reproductions violate its copyrights. But Shields has a good case that they constitute "fair use," the legal exception that allows creators of new works to use bits of old ones without violating copyrights. 

The idea is simple. If every blogger, book reviewer, scholar, and nonfiction author who quoted a paragraph or two from another work had to fear a copyright suit, the cultural conversation would atrophy. Rather than encouraging the production of new works, copyright protections would deter them. Arguments would go unanswered, works uncritiqued, theories undeveloped. Instead of reporting what people actually said, writers would have to paraphrase—and readers would have to trust them.


When it comes to images, though, there's a lot less to go on in terms of fair use. Postrel explains:

The newspaper's suit seems like a loser. In a 2006 case called Bill Graham Archives v. Dorling Kindersley Ltd., the U.S. Court of Appeals for the 2nd Circuit, whose precedents would apply to the Times suit, ruled that publishing thumbnail images of Grateful Dead concert posters in a coffee table book on the band constituted fair use. The court deemed the new use "transformatively different" from the original and noted that their small size strengthened that critical element of its analysis, since the publisher "used the minimal image size necessary to accomplish its transformative purpose."

The Times thumbnails are even tinier — so small that the headlines are barely legible. No wonder Georgetown University law professor Rebecca Tushnet opined that the paper "has, quite unwisely, sued over this textbook (coffee-table book?) fair use."

Full column here.

Postrel is hopeful that the lawsuit will actually backfire on the Times and end up laying out clearer and broader rules for fair use when it comes to images. Here's hoping. The lack of clear and loose legal standing makes it harder to have conversations worth having. I'd argue that most laws limiting reproduction of most works (whether words, music, or images) rarely are in the interest of the copyright holder.

In a footnote, she throws in a link to a Pinterest board she compiled while working on her excellent 2013 book, The Power of Glamour: Longing and the Art of Visual Persuasion. It consists of a series of images for which she couldn't secure the rights (most commonly because the copyright owner either couldn't or wouldn't follow through on requests). How whacked is it that she can post the images online but not in a book? Pretty damn whacked, I'd say.

For a discussion of libertarian views on copyright and intellectual property, go here.

Note: Added link to Postrel column around 4:15 P.M.

Reason TV talked with Postrel about The Power of Glamour when it came out. Check that out below.