United States: When Does "News" Really Fall Under The "News" Exemption Of The Copyright "Fair Use" Doctrine?

Copying another's work is generally copyright infringement — unless it qualifies as "fair use." Determining whether the fair use doctrine applies is no simple task. In 1939, the prominent Judge Learned Hand called the "fair use" doctrine "the most troublesome in the whole law of copyright."¹ Most would agree that this statement remains true today, more than 70 years later.

Federal law provides examples of "fair use," including use of a work for criticism, news reporting, teaching and research.² Falling within one of these categories does not mean that the fair use exception automatically applies. Instead, whether a use is "fair" must be determined on a case-by-case basis, considering factors such as (1) the purpose and character of the use (e.g., whether the use was commercial, and whether it was "transformative" in that it added something new to the work); (2) the nature of the copyrighted work (e.g., factual vs. creative, published vs. unpublished); (3) the amount of the work used; and (4) the effect of the use upon the potential market for or value of the copyrighted work.³

Several federal courts have recently faced defenses based upon the "news reporting" aspect of the fair use doctrine, and, decided that it does not apply, even when the use arguably relates to "news reporting."

In Monge v. Maya Magazines, Inc.,⁴ the Ninth Circuit considered whether the copying and publication of wedding photographs was fair use. A professional singer married her manager but then kept the marriage a secret for more than two years, until the couple's driver (who also happened to be a paparazzo) found photographs of the secret wedding.⁵ The driver sold the photographs to Maya Magazines, which then published five of the six pictures taken on the couple's wedding night.⁶ The court considered the "fair use" factors set forth above, and concluded that each weighed against a finding of fair use.

The purpose and character of the use: Although the coverage of the wedding qualified as news reporting, the photographs themselves were not the subject of the story, and were not necessary to prove that the wedding occurred.⁷ Additionally, the copying of the photographs was for commercial purposes, and was "minimally transformative" because Maya Magazines essentially reproduced the photographs in their entirety.⁸

The nature of the copyrighted work: The photographs were not highly artistic in nature, but they were unpublished. Under ordinary circumstances, an author's right to control the first publication of a work will outweigh a claim of fair use.⁹

The amount and substantiality of the portion used: Every single photograph of the wedding and almost all of the photographs of the wedding night were published, and in each case Maya Magazines copied the entire photograph.¹⁰ Thus, Maya Magazines used more than was necessary to corroborate its story regarding the wedding.

The effect of the use upon the potential market for or value of the copyrighted work: The court refrained from presuming that harm had occurred, but concluded that the demand for the photographs significantly decreased upon Maya Magazine's first and exclusive publication.¹¹

Another recent case Balsley v. LFP, Inc.¹² arrived at the same conclusion. In that case, the Sixth Circuit considered whether the publication in an adult magazine of a photograph of a television news reporter participating in a wet t-shirt contest was fair use.¹³ The court concluded the use did not qualify as fair use even though there was allegedly a "news reporting" aspect to the case.

The purpose and character of the use: In that case, the Defendant's use of the photograph was commercial, and was no longer newsworthy because the photograph had been published online several years prior. Further, the photograph was published in its entirety so the Court considered the use non-transformative.¹⁴

The nature of the copyrighted work: The photograph possessed a mixed nature of both fact (which receives a narrow scope of copyright protection) and creativity (which enjoys broader protection), so this second factor weighed slightly against a finding of fair use, or was neutral.¹⁵

The amount and substantiality of the portion used: The defendant essentially copied the photograph in the entirety.¹⁶

The effect of the use upon the potential market for or value of the copyrighted work: The court applied a presumption that the defendant's publication of the photograph was unfair exploitation because it was for commercial purposes, and the defendant failed to show otherwise.¹⁷

Decisions such as these suggest that it may be difficult to claim, in the context of "news reporting," that the copying of another's work qualifies as fair use, unless the original work: (i) is truly required to convey the "news" story; (ii) is the primary subject of the news reporting, criticism, or other commentary; and (iii) creates a work that provides some form of new expression, meaning or message.

Footnotes

1. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939).

2. 17 U.S.C. §107.

3. Id.

4. Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012).

5. Id. at 1169-70.

6. Id.

7. Id. at 1173.

8. Id.

9. Id. at 1178.

10. Id. at 1179.

11. Id. at 1180-81.

12. Balsley v. LFP, Inc., 691 F.3d 747 (6th Cir. 2012).

13. Id. at 755-76.

14. Id. at 758-59.

15. Id. at 759-60.

16. Id. at 760.

17. Id. at 760-61.

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