Question: Under what circumstances can “fair use” support the editorial republishing of copyrighted photographs or other artworks in a magazine, book or electronic publication?
Short answer: When the previously copyrighted works are the subject of the republishing.
Fuller answer: An “editorial” republishing, almost by definition but with important caveats, satisfies the “fair use” test under the Copyright Act in 17 U.S.C. § 107, in particular by meeting the Act’s four-factor (nonexclusive) criteria:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(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.
An analogous, common example is a newspaper or blog book review, quoting heavily from the reviewed book in order to illustrate the reviewer’s criticism. As Federal Judge Pierre Leval wrote in Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990), “Quoting is not necessarily stealing. Quotation can be vital to the fulfillment of the public-enriching goals of copyright law.”
Judge Leval is quoted extensively in a recent case involving a magazine publisher who republished copyrighted illustrations of monsters, in a biography and retrospective on the illustrator. Warren Publishing, plaintiff and owner of the copyrights in Warren Publishing Company v. Spurlock, 645 F. Supp. 2d 402 (EDPA, 2009), brought the case to challenge Spurlock’s republishing of the copyrighted but out-of-print illustrations. The court granted Spurlock’s summary judgment motion based largely on a fair use defense.
The Warren Publishing case draws heavily on Judge Leval’s fair use formulation, particularly the purpose and character of the use (Factor (1) above).
The book review is one of those situations where no serious copyright infringement challenge would ever be filed, even with such extensive quoting as is commonly done, if only because the practice is so imbued in the journalistic, publishing and First Amendment cultures. Nonetheless, historical practice need not be relied upon alone. In fact, the four factors are merely illustrative of the main text of fair use, which states:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. (emphasis added)
Criticism, commentary, news reporting, teaching, scholarship and research are the core of fair use. These types of uses are not exclusive examples of fair use, but they are the uses “thought necessary to fulfill copyright’s very purpose ‘[t]o promote the Progress of science and useful Arts ….’” . Warren Publishing Company v. Spurlock, 645 F. Supp. 2d 402 (E.D. PA, 2009) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (quoting U.S. Const. Art. I, § 8)). They are the core uses that justify the existence of the fair use defense.
In Warren Publishing, the defendant successfully argued fair use on these grounds, based on the four fair use factors:
(1) The purpose and character of the use. The court notes that the defendant’s book – a biography of the artist and retrospective of his work – “presents these [copyrighted] images for an entirely different purpose” than the plaintiff’s original use. The plaintiff was a magazine publisher whose magazine chronicled the world of movie monsters, rather than particular focus on any illustrator.
The term “transformative” is frequently applied to illustrate the first fair use factor, quoting from a 1994 Supreme Court case:
… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).
Of particular significance was the defendant’s commentary on the artist’s work. As discussed, commentary and criticism are core elements of the fair use defense. Significant to the court’s fair use finding was how the copied works were accompanied by – and clearly used to illustrate – commentary about the artist and his work. Commentary and criticism support a claim that a potentially infringing work is “transformative” rather than “merely supersed[ing] the objects of” the copyrighted work.
The first fair use factor also states “whether such use is of a commercial nature or is for nonprofit educational purposes”. The commercial nature of a work – including the Warren Publishing defendant’s commercial use – is a factor but only a factor. Quoting the Supreme Court in Campbell, the court writes “[T]he mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.” Campbell, 510 U.S. at 584, 114 S.Ct. 1164.
(2) the nature of the copyrighted work. This factor typically focuses on the creative nature of the copyrighted work as compared with more fact-based works. So, for example, nonfiction books tend to get less protection (all things otherwise being equal) than fiction, the thinking being that the more creative the work the more need for copyright protection. In Warren Publishing, there was no dispute as to the creative nature of the copyrighted works. However, the works were largely out-of-print, a factor which generally weakens a plaintiff’s copyright infringement case – and strengthens a fair use defense.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole. This factor looks at both the quantity of the materials used and the quality of the material used.
In Warren Publishing, a threshold issue was whether the individual illustrations – each individually copyright-protected – should be the focus of the infringement, rather than the whole magazine issue from which the works were taken. Obviously, using the individual copyrights as the test would have meant a 100% amount of copying, while looking to the artworks only as part of a whole meant something different entirely – in this case, 1-1.5% of each of Warren’s magazines. The court sided with the defendant. As defendant’s counsel later wrote, “if this Factor/Test [were] to have any meaning at all, it must, logically be an analysis which looks at the entire Copyrighted Work as Registered and as claimed, not just a portion thereof, even if, in theory, that portion could have been copyrighted on its own.”
As noted, this 3rd Factor relies both on quantitative and qualitative views of the amount of copying made. The Supreme Court weighed in on this Factor as well, asking in Campbell whether the amount of copying was “reasonable in relation to the purpose of the copying.” As with much of fair use law, these “clear” standards are anything but clear, but there is vast case history. In my article, Fair Use and Online Publishing, I offer these examples:
Not fair use. The Nation published 300 words from former President Gerald Ford’s soon-to-be-published 200,000-word memoir. Publisher Harper & Row sued. The Supreme Court held that this was not a fair use. In light of Harper & Row’s intended serialization of the Ford memoir to Time magazine, leak of these 300 words on the Nixon pardon seriously threatened the value of the serialization to Time and Harper & Row. Harper & Row, Publications, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
Fair use. The Associated Press published, without permission, photographs of Oliver North taken from a sales brochure for body armor. The photographs were used to accompany a related AP news story. The court upheld fair use because of AP’s news reporting use of the photos together with North’s status as a public figure. Mathieson v. Associated Press, 23 U.S.P.Q. 2d 1685 (S.D.N.Y. 1992).
(4) Final factor: the effect of the use upon the potential market for or value of the copyrighted work. This factor is sometimes affected by the other factors, and sometimes not. For example, the quality of copying – although not the amount – was relevant to an analysis of this fourth factor in cases involving the videotaped beating of Reginald Denny in Los Angeles in 1992, where a local television station broadcast 30 seconds of the 4 minute 40 second video. The court found that the 30 seconds was the “heart” of the work and had a serious effect on the owner’s market for the copyrighted work. (“Although KCAL apparently ran its own voice-over, it does not appear to have added anything new or transformative to what made the LANS work valuable—a clear, visual recording of the beating itself.”) Los Angeles News Service v. KCAL-TV, 108 F.3d 1119 (9th Cir. 1997).
In Warren Publishing, the court looked at the effect of the copying on the plaintiff’s market for derivative works, in particular a proposed coffee table book that included the copied illustrations. Significantly, Warren had held the copyrights for more than 20 years during which time it had taken no steps toward developing any such book, and in fact did so only upon commencement of this case. This obviously makes Warren Publishing a weak case to support a plaintiff’s argument about the market effect of an alleged infringement.
Another case cited in Warren Publishing is Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), involving a coffee table book about the history of the Grateful Dead. In Bill Graham, despite the plaintiff’s plausible argument about the diminished market for licensing the copied concert posters, the court was dismissive of this fourth factor, writing that “copyright owners may not preempt exploitation of transformative markets.”
In other words, the “transformative” nature of a defendant’s copying – the “soul” of fair use, in Judge Leval’s words – can in and of itself be the determinative factor.
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