Recently, a photojournalist, Michael Storms, filed an intriguing lawsuit in the U.S. District Court for the Southern District of New York against a website that published photographs taken by Mr. Storm without his permission and without paying Mr. Storms a licensing fee. The photos were of New York Mets pitcher Matt Harvey kissing Victoria Secret model Adriana Lima at a restaurant in Miami, not long after Ms. Lima broke up with New England Patriots wide receiver Julian Edelman. The pictures were posted on the website of the New England Sports Network (NESN). (The case is Storms v. New England Sports Network, Inc.)
On its face, the complaint is relatively short and generic, but it will be interesting to see the defendant’s reply, whether the network argues that its use of the photos constitutes permissible “fair use,” and the potential effect of the court’s decision on copyright law as a whole.
Under the U.S. Copyright Act, 17 U.S.C. §§ 101 et seq., the “fair use of a copyrighted work, including . . . for purposes such as . . . news reporting . . . is not an infringement of copyright.” While there is no strict formula for how a court determines “fair use”, the Copyright Act (17 U.S. Code § 107) requires consideration of 4 factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
No one of these factors is dispositive, and context matters considerably. For example, I wrote previously about the Richard Prince case (Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)), where the U.S. Court of Appeals for the Second Circuit ruled – as a matter of law – that Prince’s works were “transformative” and therefore fair use. A finding of “transformative” use doesn’t explicitly rely on any of the 4 factors, or rather relies on all 4 collectively. Other cases variously emphasize one or more of the 4 factors (e.g. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)), and still other cases look instead to the prefatory language of Section 107:
… [T]he fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.
As to that prefatory language: While, according to the Digital Media Law Project, “the fair use defense is most likely to apply when the infringing use involves criticism, comment, news reporting, teaching, scholarship, or research,” it is unclear how the fair use principles will be applied in the Storms case. According to Mr. Storms’ complaint, the text around the photographs noted that the website was relaying a report from another news source – the New York Post – and presumably NESN would rely on the news reporting aspect of the story in its defense. Separately, Law360 found a cached version of the NESN article that included an embedded Instagram post by the New York Post’s gossip website Page Six with an apparent reference to Mr. Storm’s company as attribution for the photo – presumably Page Six had paid a license fee to Mr. Storm’s company for use of the photo. A quick online search also revealed a number of sites that attribute the photos to Mr. Storms’ company and presumably paid for the right to use the photos – for example, see DailyMail.com. The fact that license fees may have been paid by other news outlets would seem to cut against a fair use argument under the fourth factor because there does seem to be a market for licensing these photos. At the same time, it is clear that this information was seen by many as newsworthy.
There was an interesting post published in the Harvard Law School Library Blog in 2015 about fair use and news reporting that could lend some insight to this case. The author, Leigh Barnwell, criticized another Southern District of New York decision, North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC, which rejected a fair use defense related to the reproduction of a photograph, also in the news reporting context. Courtney was critical of the court’s focus on the fourth factor – the effect of the use upon the potential market for or value of the copyrighted work – in the context of news reporting, noting “[t]he fact that the court identifies the lost revenues from other news outlets as a significant financial harm that weighs against a finding of fair use in this case shows just how deeply the culture of licensing fees has pervaded the legal analysis of media fair use claim.” As I noted above, news reporting is specifically mentioned in the prefatory language to Section 107, which in Courtney’s view should give it a higher statutory posture than, say, appropriation art such as Richard Prince’s, and likewise be less dependent on consideration of whether or not license fees are lost. Or as Courtney concludes, “These fees are something the court thinks a copyright holder has a right to collect, which would only be true if these uses aren’t protected as fair ….”
While it is a fun exercise to think about what could happen, only time will tell how NESN responds to the complaint and the potential effect of this case on copyright law and the fair use defense. We will continue to monitor the case and provide periodic updates.