Is it always a fair use when a copyrighted photograph is used in a news article?

Is it always a fair use when a copyrighted photograph is used in a news article?

A copyright is a group of exclusive rights granted to the creator a new artistic work.  Copyright law in the United States protects many different types of artistic works such as music, books and photographs.  When an artist creates a new work, the artist is automatically granted a copyright to their work.  A copyright gives the owner o the copyright the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original work.  If someone other than the copyright owner exercises one of these exclusive rights that can be considered copyright infringement.

The rights associated with a copyright are not unlimited. The purpose of copyright law is to promote the arts, so there are some limitations to the rights granted by copyright law.  Fair use of a copyrighted work is not considered copyright infringement.  In United States copyright law Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Such uses can be done without permission from the copyright owner.  There are four factors a court will evaluate when a fair use defense to copyright infringement is raised.  Those factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work,  (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on the facts of a specific case. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

Typically when a fair use defense is used in the context of new reporting, the courts give the defendant significant deference.  This is because it is very difficult to report on a topic without showing the copyrighted work.  However, news reporting does not grant a defendant immunity from liability for copyright infringement.

A case which illustrates when new reporting is not considered a fair use is Ferdman v. CBS Interactive Inc., No. 17-1317 (PGG) (S.D.NY 2018).  This case involves a new website republishing a photograph taken at a movie shoot.  The plaintiff is a photographer who licenses his photographs to publishers for a fee.  The plaintiff took pictures of the production of Spiderman: Homecoming and uploaded the photographs to a licensing service.  The defendant Gamespot, which is owned by CBS Interactive, republished several of the photographs along with news articles about the movie.  Ferdman sued for copyright infringement.

The District Court for the Southern District of New York found that the defendant’s use of the copyrighted photographs was not a fair use.  The court found that the purpose and character of the use, weighed in favor of Ferdman because the photographs were republished with little commentary on the photographs.  The second factor,
nature of the copyrighted work, favored the defendant because the photographs were just events that happened around the plaintiff.  The court found that, the third factor, amount and substantiality of the portion used, did not favor either party.  The court found, final factor, effect of the use upon the potential market, weighed against fair use because the defendant’s use negatively impacted the market for plaintiff’s photographs.

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