Photography, Fair Use and Free Speech

All of us take a bad picture now and then.  You know, one of those pictures of yourself that makes you cringe every time you see it.  Honestly, I don’t think I have liked a picture taken of me since 1995.  But most of us react mildly to a bad picture; we moan a little and move on.  Raanan Katz, however, takes more dramatic action.  Katz, who is a real estate developer and part-owner of the Miami Heat basketball team, has been trying to erase an unflattering picture of himself from the Internet for the past three years.  As is so often the case with this kind of legal action, it has had the ironic effect (often called “the Streisand Effect”) of drawing more attention to the photo than it would have received if ignored.  But it is Katz’s method of trying to make the picture go away that is the reason for this post; he bought the copyright in the picture and brought a lawsuit for infringement.

Those who want to know more about the history of this effort, and see the offending photograph, can read this short story from Forbes magazine.  But I want to focus on a couple of specifics in the holding, which upheld the lower court’s ruling that the use of the photography by the defendants was fair use. There are a couple of items in the Eleventh Circuit’s fair use analysis that are worth attention, as well as an interesting connection with the Georgia State copyright case.

The connection with Georgia State is mostly found in the fact that the opinion in Katz v. Google was written by Judge Tjoflat, who also wrote the appellate opinion in Cambridge University Press v. Georgia State.  The Judge seems to be getting more comfortable with the fair use analysis, although it is also arguable that this one was an easier case.  The GSU opinion actually makes a cameo appearance in the Katz ruling; there is a footnote in which Judge Tjoflat acknowledges Katz’s claim that the trial court failed to do the necessary case-by-case analysis of the challenged works, and cites to GSU for the proposition that such analysis is required.  The Judge dismisses this, however, by finding that the magistrate whose “Report and Recommendation” was adopted by the lower court, had taken account of each of the different uses that the defendants had made of the ugly photo.  He adds that “the district court was not required to write a prolix, unwieldy opinion with 25 separate sections devoted to each alleged instance of infringement.” (FN 3)  One can’t help but read that comment as an oblique reference to the massive decision that Tjoflat and his colleagues confronted in the GSU case; I wonder what Judge Evans, who presumably is preparing a similarly lengthy opinion on remand, might make of that comment?

More substantively, the Eleventh Circuit ruling in Katz raises an interesting point about copyright in photographs.  While discussing the second fair use factor, the nature of the original work, the court finds that the photograph in question is “primarily factual,” a finding that supports fair use, by helping to tip that one factor, out of four, in its favor.  The court explains this holding, while acknowledging that photography may require many creative decisions, this way, “The Photo, however, is merely a candid shot in a public setting, and there is no evidence in the record that Magriso, the photographer, attempted to convey ideas, emotions, or in any way influence Katz’s pose, expression, or clothing.” (p. 9).  This language seems, to me, to suggest that copyright is somewhat weaker, or at least more susceptible to fair use, in photographs that simply  attempt to record events that take place in public, as opposed to deliberately artistic photos.  I wonder how news organizations and photojournalists feel about this.  While it makes sense, I think, it also suggests a difficult line.  If copyright is less protective for such “merely” journalistic photos, is there a point where we should not grant copyright at all, as we don’t, for example, where a photograph merely “slavishly reproduc[es]” a two-dimensional public domain artwork.  The question of how much originality is enough in a photograph, which by its nature is often a record of “facts” such as the appearance of people or the external world, to meet the standard for copyright seems less easy here than it is, perhaps, for other media.  But perhaps the answer is that we will protect most photographs, while recognizing that there may be a lower bar for fair use because of this particular and peculiar nature of the art form.

The other point in this ruling that I found very interesting is the analysis of the fourth factor, where the court found that Katz’s purchase of the rights and registration with the Copyright Office, entirely for the purpose of suppressing the picture, was evidence that the challenged uses did not do any harm to a cognizable market.  In short, because the owner’s purpose was to prevent all use, fair use becomes more likely, since it shows there is no market, because no intent to ever license the work.  This logic casts some doubt on the argument often made by rights holders that they have a right not to allow the work to be used.  That is true, but it is still subject to fair uses, which by definition are not copyright infringement — they do not intrude on rights that the copyright owner actually holds.  While the reasoning seems a bit difficult here, for me it is the most important point in this decision; the market harm factor clearly plays its part in the “safety valve for free speech” function that courts often assign to the whole fair use analysis.  Simply put, fair use gets a boost whenever the issue before the court is this alleged right to suppress; copyright gives the rights holder a lot of power over a work, but it does not convey the right to entirely prevent protected speech, even when (especially when!) that speech is critical of,or distasteful to, the rights holder.

PS — this post was mostly written before I learned of yesterday’s ruling in the dispute over an alleged, and now quite doubtful, copyright in the song “Happy Birthday To You.”  That decision is much more widely covered than the one discussed above, and, because it turns on such unique and difficult-to-establish facts, seems to have less impact on daily copyright issues than the Katz case does.  So while I wanted to acknowledge the decision, and provide a link to the ruling for anyone interested who has not already seen it, I decided to stick with my original plan to discuss Katz today.