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TWiL 13: Domain Name Lawthis WEEK in LAW

Last week, those of us in the New York metropolitan area, were treated to a constant barrage of news stories about now former (as of today) NY governor Eliot Spitzer\'s dallying with prostitutes, including \"Kristen,\" a/k/a Ashley Alexandra Dupre, a/k/a Ashley Youmans. The NY Post, a virulently right-wing Rupert Murdoch tabloid property that loves to loathe Spitzer was in hog heaven. (Today\'s Post has an even more shocking front page story about former New Jersey Governor Jim McGreevey, his wife, and a driver).

The Post also secured what it called exclusive rights to certain pictures of \"Kristen\" without clothes, which it reproduced on the cover and inside pages. It was not clear from the Post story who took the pictures, but unless \"Kristen\" did or unless she got an assignment of rights from the photographer, she doesn\'t own the copyright. Nevertheless, a bloviating lawyer who says he represents her was bloviating about the Post committing copyright infringement.

Ownership issues aside, the use by the Post has an obvious claim to fair use. The First Circuit had a case involving similar issues in 2000, Nunez v. Caribbean International News Corp.
235 F.3d 18 (1st Cir. 2000). Here are the facts, from the court\'s opinion:

Núñez, a professional photographer, took several photographs of Joyce Giraud (Miss Puerto Rico Universe 1997) for use in Giraud\'s modeling portfolio. Núñez then distributed the photographs to various members of the Puerto Rico modeling community in accordance with normal practice. After the photographs had been taken, some controversy arose over whether they were appropriate for a Miss Puerto Rico Universe, based on the fact that Giraud was naked or nearly naked in at least one of the photos. A local television program displayed the photographs on screen and asked random citizens whether they believed the photographs were ?pornographic.? Giraud was interviewed by two local television stations as to her fitness to retain the Miss Universe Puerto Rico crown. El Vocero then obtained several of the photographs through various means. Over the next week, without Núñez\'s permission, three of his photographs appeared in El Vocero, along with several articles about the controversy.

The district court ruled for the newspaper, and the court of appeals affirmed, in language that is quite relevant to the Spitzer affair:

We agree with the district court that the commercial use here, however, constitutes more than mere reproduction for a profitable use. The photographs were used in part to create an enticing lead page that would prompt readers to purchase the newspaper. Thus El Vocero used the photograph not only as an ordinary part of a profit-making venture, but with emphasis in an attempt to increase its revenue. ? For this reason, the commercial nature of the reproduction counsels against a finding of fair use.

However, the district court also found that the pictures were shown not just to titillate, but also to inform. Puerto Ricans were generally concerned about the qualifications of Giraud for Miss Puerto Rico Universe, as is demonstrated by the several television shows discussing the photographs. This informative function is confirmed by the newspaper\'s presentation of various news articles and interviews in conjunction with the reproduction. Appellee reprinted the pictures not just to entice the buying public, but to place its news articles in context; as the district court pointed out, ?the pictures were the story.? It would have been much more difficult to explain the controversy without reproducing the photographs. And although such an explanatory need does not always result in a fair use finding, ? it weighs in the favor of appellee.

This is not to say that appellee\'s use of the photographs was necessarily fair merely because the photographs were used for news purposes, nor does it establish a general ?newsworthiness? exception. First, the Supreme Court has specifically frowned upon such an exception?.. Second, the problem with such an approach (as the Supreme Court pointed out) is that it provides an incentive for the infringer to create ?news,? so that its infringement falls within the exception. ?Were a ?newsworthy? use per se fair, journalists and news photographers would be left with little assurance of being rewarded for their work. ? It suffices to say here that El Vocero did not manufacture newsworthiness, as it sought not to ?scoop? appellant by publishing his photograph, but merely to provide news reporting to a hungry public. And the fact that the story is admittedly on the tawdry side of the news ledger does not make it any less of a fair use.

Rather, what is important here is that plaintiffs\' photographs were originally intended to appear in modeling portfolios, not in the newspaper; the former use, not the latter, motivated the creation of the work. Thus, by using the photographs in conjunction with editorial commentary, El Vocero did not merely ?supersede[ ] the objects of the original creation[s],? but instead used the works for ?a further purpose,? giving them a new ?meaning, or message.? ? It is this transformation of the works into news-and not the mere newsworthiness of the works themselves-that weighs in favor of fair use under the first factor of § 107

Full post as published by IP Law Daily on March 17, 2008 (boomark / email).