Republished news article results in copyright infringement claim. GATTONI v. MICROSOFT

Copyright law protects original works of expression like books, music, movies, and photographs. A copyright is a set of exclusive rights granted to the creator of an original work of expression. A copyright owner is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original. If someone exercises one of these exclusive rights, without authorization, that can constitute copyright infringement. A copyright owner can respond to copyright infringement by filing a lawsuit to stop the infringement and get monetary damages. However, 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.

Traditionally fair use has provided news organizations with some protection from allegations of copyright infringement, however the ambiguity in copyright law and the blurring lines between news and entertainment have made it more difficult to tell when a news organization will be protected by a fair use defense.

A case which illustrates the fine line that news organizations walk when they use copyrighted photographs without permission is MATILDE GATTONI, v. MICROSOFT CORP, 1:20-cv-3909 (S.D.NY 2020). Plaintiff in this case is a professional photographer that took several photographs of women in china who are leading the wine industry.

Defendant is a multinational software company that sells Microsoft Windows and has various subsidiaries. One of those subsidiaries, MSN, operates a website that publishes news and entertainment articles. In January 2020 Plaintiff co-authored an article for the Washington Post which included pictures she took. The article was entitled “These are the women leading China’s wine revolution.”

Defendant republished the article, including photographs, presumably with permission of the Washington Post. However Plaintiff was not consulted before the article was republished. Plaintiff then filed a lawsuit for copyright infringement against Defendant for republishing her photographs.

The exact mechanics of how the Washington Post published Plaintiff’s photographs and licensed the article for republishing without permission to republish the photographs contained in the article is a mystery. Defendant has a couple of plausible defenses to the copyright infringement claim including fair use and implied license. We will have to wait and see the Defendant’s side of the story when an answer to the complaint if filed.

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