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.

Comments

[Stephen Lathrop]

I make a part of my living selling photographic images as fine art. From time to time, I have also offered images for use in public hearings, or for newspaper articles illustrating public controversies.

I am a fierce defender of copyright privileges for photographers. But it would never occur to me that any image I offered for public use would thereafter be anything but a public domain image. In fact, that always seemed to be the point of public use—to encourage the image to circulate as freely as possible, to illustrate the controversy.

But if for some reason you decide to take one of my fine art images for “fair use,” I’m coming after you. My damage claims will be provable. Not many people would regard them as trivial.

Fair use is a fine idea, which I support. But there has been advocacy, on this blog and elsewhere, which takes the fair use concept much too far. It can’t amount to, “Steal what you need, if you can’t find the image you want otherwise.”

You want a photograph to illustrate some notion you want to publish? You want to make and sell an oil painting, by copying a photograph? Make the photograph yourself, or commission a photographer—after you find out by trying that it’s harder than you thought to make that image you want—or maybe want to steal—because it seems just right.

[David Nieporent]

Amazingly you manage to get both aspects of the legal issue wrong.

No, something isn’t “public domain” just because you’ve allowed it to be used in the context of some public discussion. As in the linked case, others’ use of it in that context may be fair use — but you still retain the copyright.

But the mere fact that you don’t want people using something you created doesn’t mean that fair use doesn’t apply; indeed, that’s the only context in which fair use can apply. The mere fact that someone else wants to use it doesn’t make it fair use, obviously — but your conception of what fair use is, as we’ve established, is unrelated to the legal concept of fair use.

[Stephen Lathrop]

Nieporent, so far you haven’t touched on my concept of fair use, which I did not detail, so unsurprising. You have bizarre ideas about censorship and editing. I suppose bizarre ideas about fair use could be part of the same package.

As for public domain, what I said, or at least implied so directly you should have understood it as said, is that if I publish an image in furtherance of discussion of a public controversy, I intend for the image to go into the public domain. I am voluntarily giving up the copyright. That is my personal policy, not an attempt to describe the law. There is no sensible way to assert that makes me wrong about public domain.