Fair Use Permits Newspaper to Republish Photo Taken By Drone–Castle v. Kingsport Publishing

Yes, this is another defense-favorable fair use ruling produced by a Richard Liebowitz lawsuit. 🙏🙏🙏

The case relates to a construction site for a proposed new school, which may have sinkholes. This concern sparked substantial community debate. The plaintiff flew his drone over the construction site and took photos purportedly showing the sinkholes. At a Board of Education meeting, the plaintiff gave a board member a 2 foot x 5 foot blowup of the photo to use as a visual aid. Soon after the meeting, the defendant published a news story about the controversy, including the photo displayed at the board meeting. You can see the photo in the linked story and in the opinion (I’m sure I could republish it here under fair use, but I don’t have the energy to deal with the potential drama).

The plaintiff agreed that the defendant republished the photo in connection with its “news reporting.” Nevertheless, the plaintiff claims, apparently without much credible evidence, that he would have charged $4,000-$5,000 to license the photo. Meanwhile, the defendant received “about” $15.20 in ad revenues from the news story. This is how I knew this was a Liebowitz case before looking up the attorneys. It’s hard to imagine many lawyers pursuing a federal lawsuit over $15.20 of revenue. Indeed, if Liebowitz had offered to settle for 100% of the defendant’s revenues from the article–even though not all of that revenue is attributable to the photo–this case would have instantly settled. Instead, the court grants summary judgment to the defense on fair use grounds.

Nature of the Use. The defendant used the photo to illustrate the public controversy over the construction site. The article reports on an expert’s disagreement with the narrative that the photographer and education board member had articulated in the board meeting. The court tries to position this critical commentary as a transformative use of the photo. It might have been cleaner to characterize the photo as a key piece of evidence from a government meeting that helps readers visualize the controversy and the criticism. That’s why the statute lists “news reporting” as a paradigmatic example of fair use.

The defendant also made a commercial editorial use, but the fact it made only $15 makes it feel not very commercial. This suggests a meta-commentary about the economics of journalism, especially when adding in the cost of dubious copyright litigation, but the court doesn’t engage with it.

Nature of the Work. Photos can be creative, but this photo was meant to document the possibility of sinkholes. The photo was also “published” at the board meeting, but the court says that consideration rarely matters.

Amount Taken. The defendant needed to show the entire photo to help validate the story’s counter-narrative.

Market Effect. “Plaintiff has not shown there is even a potential market for a drone image of a high school construction site in Sullivan County, Tennessee that attempts to show the existence of potential sinkholes.”

Thus, an easy fair use ruling. Perhaps that outcome was inevitable once the plaintiff admitted the “news reporting” characterization. I think many plaintiffs’ lawyers would have dropped the lawsuit after that admission. Then again, the news reporting angle was obvious from the outset, so many lawyers never would have brought the case.

Though Liebowitz’s license to practice has been suspended in the Southern District of New York, his cases in other districts are still proceeding. This is likely good news for fair use jurisprudence, but it’s not good news for the defendants who have to spend their money to produce the caselaw. Given the costs this defendant had to bear, I wonder if the court will entertain a 505 fee shift to the defense. The plaintiff’s admission about “news reporting,” plus the $15 of revenue at stake, make this a good candidate for a fee shift.

Case citation: Castle v. Kingsport Publishing Corp., 2:19-CV-00092-DCLC (E.D. Tenn. Dec. 14, 2020)