The Volokh Conspiracy

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Free Speech

Fair Use to Republish, in Annotated Form, Drone-Taken Photograph Used in a Political Argument

As with all fair use claims, the analysis turns on the particular facts.


Prof. Eric Goldman (Technology & Marketing Law Blog) reports on Castle v. Kingsport Publishing, decided Monday by Judge Clifton L Corker (E.D. Tenn.):

Yes, this is another defense-favorable fair use ruling produced by a Richard Liebowitz lawsuit.

The case relates to a construction site for a proposed new school, which may have sinkholes. This concern sparked substantial community debate. The plaintiff flew his drone over the construction site and took photos purportedly showing the sinkholes. At a Board of Education meeting, the plaintiff gave a board member a 2 foot x 5 foot blowup of the photo to use as a visual aid. Soon after the meeting, the defendant published a news story about the controversy, including the photo displayed at the board meeting. You can see the photo in the linked story and in the opinion (I'm sure I could republish it here under fair use, but I don't have the energy to deal with the potential drama).

The plaintiff agreed that the defendant republished the photo in connection with its "news reporting." Nevertheless, the plaintiff claims, apparently without much credible evidence, that he would have charged $4,000-$5,000 to license the photo. Meanwhile, the defendant received "about" $15.20 in ad revenues from the news story….

Nature of the Use. The defendant used the photo to illustrate the public controversy over the construction site. The article reports on an expert's disagreement with the narrative that the photographer and education board member had articulated in the board meeting. The court tries to position this critical commentary as a transformative use of the photo. It might have been cleaner to characterize the photo as a key piece of evidence from a government meeting that helps readers visualize the controversy and the criticism. That's why the statute lists "news reporting" as a paradigmatic example of fair use.

The defendant also made a commercial editorial use, but the fact it made only $15 makes it feel not very commercial. This suggests a meta-commentary about the economics of journalism, especially when adding in the cost of dubious copyright litigation, but the court doesn't engage with it….

For more details on the analysis, see Prof. Goldman's post; I think the court's approach is quite correct, and would apply to non-drone photographs as well.