Is a newspaper always protected by copyright fair use? OTTO v. Hearst

A copyright is a set of exclusive rights granted to the creator of a new artistic work. When an artist paints a picture, a singer records a song or a photographer takes a picture, that is considered creating a new work. The creator of the new work is automatically granted a copyright, the creator can register the copyright to strength the rights associated with the copyright, but registration is not required for the copyright to be granted. Copyright law in the United States grants the copyright owner the exclusive right to reproduce, distribute, display, perform, transmit, and to make derivative works based on the original work. If someone other than the copyright owner attempts to exercise one of these exclusive rights, that can be copyright infringement. A copyright owner can deal with copyright infringement by filing a complaint in United States Federal Court. The complaint can request an injunction to stop copyright infringement that is currently happening and to get monetary damages for copyright infringement which has occurred.

A copyright does not grant the owner of the copyright the absolute right to control how the copyrighted work is used. There are some limits to the exclusive rights granted by copyright law. One of those limits is copyright fair use. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain activities that my qualify as fair use. Those activities include criticism, comment, news reporting, teaching, scholarship, and research. However, those activities are just examples of things which may qualify as fair use, there is no guarantee that a court will determine that a use is a fair use.

A case which illustrates when fair use will not protect news reporting is Otto v. Hearst Communications, Inc., 1:17-cv-4712 (S.D.N.Y. 2018). The plaintiff in this case is Jonathan Otto. He attended a friend’s wedding at the Trump National Golf Club in New Jersey in June 2017. President Donald Trump stopped by the wedding unannounced. Otto took a picture on his iPhone of President Trump at the wedding. Otto texted the picture to another wedding guest. The next day, Otto learned that his photograph had been published by multiple media outlets, including Defendant Hearst Communications, which had published Otto’s photograph as part of an article about the wedding on Esquire.com. It does not cost money to access Esquire.com, but the page displaying the article about the wedding featured advertisements.

Otto sued Hearst for copyright infringement and Hearst tried to get the case dismissed on the basis that the use of the photograph was a fair use for the purpose of news reporting. The district court did not find that Hearst’s use was a fair use and allowed the case to proceed. The district court reviewed each for the four factors of copyright fair use and determined that Heart’s use was not a fair use. Heart’s use was not transformative and revenue was derived from the use. The district court noted that although Otto was not a professional photographer, Otto had the right to try to sell the photograph to media outlets, if he decided to do so. Hearst’s use of of Otto’s photograph destroyed Otto’s market.

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