When is it Fair Use to Use a Photo to “Illustrate” an Article?
One of the practices that has generated a sizeable number of disputes and rulings is the use of photos to illustrate articles. There is no shortage of articles being generated online, and often those content producers simply canvass the web to find a suitable photo. These three cases address fair use in this context.
McGucken v. Pub Ocean: McGucken is an accomplished photographer. He photographed a lake that materialized at Death Valley. He shared the photos to Instagram. Pub Ocean owns several websites, such as “magellantimes” and “maternityweek”. It hired a freelance writer to write about the phenomenon documented by McGucken. Pub Ocean then published an article titled “A Massive Lake has Just Materialized in the Middle of One of the Hottest Places on Earth”. The article contained several of plaintiff’s photographs. Pub Ocean did not seek permission from McGucken, but the article did credit him by linking to his Instagram page.
McGucken moved for summary judgment on the fair use defense. The court denies plaintiff’s request. In a surprise move, it grants summary judgment to defendant even though Pub Ocean did not formally request summary judgment.
Factor one: The court says defendant’s use is transformative. Only ten of forty-four pages of the article discuss McGucken’s photos. The article “includes commentary and other pictures . . . and the added writing gives context to the photos beyond what is already apparent.” The court acknowledges the use was commercial but says the transformative nature of defendant’s use tips the first factor in favor of fair use.
Factor two: The second factor is not “terribly significant,” and the court says it weighs slightly against fair use.
Factor three: Although the entirety of the photos were used, the court says the context still tips the third factor towards fair use:
The article’s additions to Plaintiff’s photos express ideas (figuratively) and display images (literally) beyond what Plaintiff expressed in his photographs. That is unlike the magazine in Monge [v. Maya Magazines], in which the purpose of the entire piece was to display the wedding photos. In other words, the use of wedding photos in the article was “not just substantial, it was total.”
Factor four: The court acknowledges that a market exists for plaintiff’s photos, but the transformative nature of defendant’s use “mutes” the degree of market substitution.
McGucken is appealing the ruling against him. He has a reasonable chance of success on appeal.
Werner v. Red Blue Media: In sharp contrast to Pub Ocean, another judge in the same district (the Central District of California) grants a plaintiff’s request for summary judgment as to fair use. This case involved a photographer who focuses on “dangerous stunts,” “exotic animals,” “sideshow eccentricities,” and “people who have overcome obstacles.” Red Blue Media owns and controls several websites, including “Guff” and “Memes”. Plaintiff discovered the use of his photos in articles covering the following topics:
- “The Snuggery”
- “Dillie the Deer”
- “Goatee the Surfing Goat”
- “Giraffe Woman”
Plaintiff’s photographs were used in seven articles. Some of the articles contain only one photograph with a brief caption. Others appear to be “listicles”. Still others include longer narratives with photographs “interspersed” among the text.
Factor one: The court says the first use is at best neutral. The articles present the subjects in exactly the same light as the photographs. While there is some written commentary, it is at best minimally transformative. The fact that defendant profited from and selected “unique subject matter” (that is also the subject of the photos) makes the use “particularly exploitative”.
Factor two: The court says there is some doubt regarding publication status. Still, the works are creative and not the result of fortuitous captures. The second factor weighs slightly against fair use.
Factor three: The entirety of the work was copied. The court notes that defendant “could have covered the . . . phenomena discussed in the articles . . . without including the entirety of the photographs.” This factor weighs strongly against fair use.
Factor four: The fourth factor also weighs against fair use:
Unrestricted and widespread conduct of the sort Defendant engaged in would destroy the market for licensing Plaintiff’s work. If anyone could reprint Plaintiff’s photographers for readers interested in strange and unusual people and images, the licensing market simply would not exist. Because the commentary simply reiterates that the subjects are unusual, Defendant’s articles are a market substitute for competing articles and other kids of reprints.
The court finds for plaintiff on the fair use issue and rules against defendant on liability.
Wilfullness: The court also finds that plaintiff has established willfulness on the record before it. The fact that defendant did not remove the photos after receiving notice and the fact that defendant did not have an ostensible good faith basis for using the images are decisive to the court. Net result: the court will conduct a jury trial solely to set the amount of damages.
Philpot v. Independent Journal Review: Philpot is suing the Independent Journal Review over a Ted Nugent photo taken by Philpot. Philpot is a serial litigant. As documented in several cases, he posts his photos to Wikimedia and then sues defendants for not providing the attribution required by the Wikimedia license. In this case, IJR published the photo in an article (“signs your dad is a conservative? He ‘hearts the nuge’..”) but did not provide the requisite attribution.
IJR initially moved to dismiss, which the court denied, then filed a motion for summary judgment. The court grants the motion, upholding IJR’s fair use defense.
IJR raised issues with Philpot’s registration (that it contained both published and unpublished photographs). The court says there are factual disputes as to validity of the registration. However, the court applies the fair use factors and finds IJR is entitled to summary judgment based on fair use:
Defendant’s use of the Photograph satisfied . . . the criteria for fair use . . . as it was clearly used for purposes such as comment, news reporting, [and] teaching, . . . not an infringement of copyright. It was part of a commentary on issues of public concern that placed it in a new context to serve a different purpose. As such, the Photograph had a transformative use. As in MRC [another case where a court found against Philpot on the same issue] there was de minimis commercial gain to, and lack of a financial motive by, the Defendant, no demonstrable market or financial injury to Philpot or bad faith or negligent use of the Photograph, particularly in light of the terms under which Philpot allows the use of his photographs, and the attribution to Philpot reachable from the Article, albeit indirectly.
These three rulings illustrate that courts continue to rely on subtle factual differences in resolving the question of fair use. Perhaps it’s stating the obvious, but it can’t hurt to have reminders of this. In all three instances, the court is addressing a similar phenomenon. Someone goes out and grabs a photo online and uses it to “illustrate” an article. As the rulings demonstrate, this is a risky practice at best from a legal standpoint.
Werner and McGucken were issued within weeks of each other. It’s interesting to see two courts dealing with the same body of precedent and very similar facts come to opposite results. It would have been nice to see the later ruling (Werner) grapple with the earlier one. It would have also been nice to see the court attach an article or two as an appendix.
Philpot arises in a slightly different factual context. The court appears influenced by the fact that Philpot allows his photos to be used freely, and thus there is no market for his photographs. (Chip Stewart covers the phenomenon of suing over CC licenses here: “Beware the Copyleft Trolls“. It’s an issue that has gotten the attention of the Creative Commons community itself, which is considering ways to address it.)
I blogged about the practice of embedding. While this could be a possible workaround, the recent uncertainly regarding the legality of embedding makes this of limited utility.
Finally, the Copyright Claims Board is scheduled to go live at the end of this year: “Copyright Office Issues Final Rule for Small Claims Expedited Registration Procedures and FOIA Conforming Amendment“. It will be interesting to see what the CCB does with fair use and whether the parties decide to opt in.
McGucken v. Pub Ocean, 20-cv-01923-RGK-AS (C.D. Cal. July 21, 2021)
Werner v. Red Blue Media, 20-cv-01024-SVVV-AFM (C.D. Cal. Aug. 9, 2021)
Philpot v. Independent Review Journal, 20-cv-00590-AJT-TCB (E.D. Va. Aug 18, 2021)