Is it fair use to copy photographs for political debate?

Copyright is a set of exclusive rights granted to the creator of an original work of art. Copyright protects works of art like books, music, movies, and photographs. Copyright allows the creator of a new work of art to control the sale and distribution of the work of art. If someone sells or copies a copyrighted work of art without the creator’s permission this is known as copyright infringement. A creator can file a lawsuit to stop copyright infringement. But, the rights granted by copyright law in the United States have some limitations. One of the limitations of copyright law in the United States is known as fair use. A defendant in a copyright infringement lawsuit can claim that its use of a copyrighted work is protected by fair use and not be held liable for copyright infringement.

When a court is presented with a fair use defense to a copyright infringement claim, the court analyzes four factors. Those four 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 taken, and (4) the effect of the use upon the potential market.

A case which illustrates a successful fair use defense to copyright infringement is Philpot v. Media Research Center Inc. No. 1:17-cv-822 (E.D. Va. Jan. 8, 2018). The plaintiff is a photographer that took pictures of famous musicians at concerts. The defendant is a news agency that specializes in news about political issues in the United States. This case involves Plaintiff’s copyright interests in two photographs: (1) a photograph of Kenny Chesney performing in concert, and (2) a photograph of Kid Rock performing in concert. Plaintiff uploaded the photographs to the internet. The photographs were available for download and use, subject to a Creative Commons attribution license. Defendant used the Chesney photograph in an article about politically active celebrities and the Kid Rock photograph in an article about his bid for Senate, without attributing either photograph to Plaintiff.

The question in the case was: Whether Defendant’s use of plaintiff’s photographs of musicians in articles concerning the musicians’ political beliefs constitute fair use of the photographs. The court sided with the defendant and found that the use of the plaintiff’s photographs was fair use.

In the courts analysis, the four factors of the fair use defense to copyright infringement were reviewed. For the first factor the court found that the use was transformative because the defendant used the photographs for the purpose of news reporting and commentary, while the plaintiff intended to depict musicians performing in a concert. The court found that the second factor was neutral because even though the photographs are factual, the plaintiffs used creative discretion when the photographs were created. The court found that the third factor favored the plaintiff because the entire photographs were used by the defendant. For the fourth factor, the court sided with the defendants because the plaintiff failed to show that there was any economic impact on the market for pictures of the celebrities in the photographs.

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