Here Comes Another Bubble

by Tim Lee on December 17, 2007 · View Comments

This is great:

Unfortunately, TechCrunch says that the video is being pulled from video sites because a photographer who owns a copyright to a photo featured in the video isn’t happy about it being used without permission. Michael Arrington is incensed about this, and argues that the photo is fair use.

Now, Tom is right that Arrington is wrong when he says that using the photo is fair use because it’s being used in a parody. Parody is a fair use defense for using the work being parodied. You can’t just incorporate any old work into a parody and claim fair use.

However, I think the fair use argument here is stronger than Tom suggests. If we take a look at our four factors, factor 4 clearly weighs in favor of fair use (including a low-resolution copy of the photo in a viral video isn’t going to undercut the market for selling the photo), factor 3 is perhaps slightly against fair use (the whole photo is used, but it’s a low-res version, and factor 2 seems pretty neutral.

That leaves the first factor, the extent to which the use is “transformative.” I honestly have no idea how courts would come down on this factor, but certainly it’s not crazy to argue that briefly displaying a photo in a video is fair use. I mean, there are lots of law professors willing to go to the matt for the idea that incorporating short video clips into a longer video is fair use. If that’s fair use, I don’t see how displaying a photo for 3 seconds is any different.

The bottom line, I think, is that we have no idea. The cost of litigating the question would be vastly more than the cost of creating either video or the photo, not to mention more than any possible profit either might make off of them. And as these issues get quietly settled instead of litigating, de jure copyright law drifts ever further away from de facto copyright law.

And Arrington is obviously right that as a policy matter, it’s stupid that copyright law interferes with this kind of creativity. It would be an unacceptable headache to clear the rights to every single image that one wanted to include in a video like that. On the other hand, it’s hard to see how requiring that the rights be cleared does anyone any good. Someone making an amateur video like that isn’t going to pay anybody royalties. He would just use a different image if someone said no. So the public gets a lower-quality viral video, and the photographer still gets nothing.

And I think Arrington is also right that people are going to just keep doing what’s reasonable regardless of what the law says, and at some point the law is going to have to catch up with practice. This certainly isn’t the sort of thing you could get changed in Congress by asking nicely. But on the other hand, professional photographers are going to have no more luck suppressing this sort of thing than the music industry has had combatting file sharing. And at some point it will become obvious that the law doesn’t reflect reality.

View Comments Posted in: Technology, Business & Cool Toys

  • If the video is fair use, then I don't see why Wired was obliged to pay the photographer for her work in the first place. In other words, I don't see how this could be considered fair use without invalidating the entire freelance news photographer business model.

    Give me a break, that's ridiculous, just because someone uses a brief glimpse vs. Wired using that phot on their website, those are not even similar. Let's chuck that one into the broken analogy pile, which is getting rather high recently...

    Preserving business models is not a good way to determine appropriate IP policy, of course,

    Hmmm.. there are not very many people how are saying 'of course' to that obvious moral truism these days, sadly..
  • Michael R. Bernstein
    Pilgrim, I think that given the fact that another photo could have easily been substituted without affecting the meaning of the parody at all rather firmly puts this use in the category of satire.

    As for whether clearing all such uses is onerous... Of course it is. And that's the problem with the current Copyright regime that Creative Commons licenses are meant to solve. Which also would have required attribution, at a minimum.
  • Preserving business models is not a good way to determine appropriate IP policy, of course, but given that people have made their living selling photographs for quite a while I'm going to go out on a limb and assume they're doing so from a solid legal foundation.
    Every example of fair use undercuts a hypothetical market for licensing of that use. Publishers, for example, argue that Google Book Search isn't fair use because it undercuts the market for search engine licensing. In the Jon Else story, Fox presumably would have argued if it came to a court battle that Else was undermining the market for licensing snippets of videos in documentaries.

    Now, an obvious difference is that licensing by freelance photographers is a long-standing commercial practice which the courts would presumably take into account. But on the other hand, I'm not aware of a thriving market in photo licensing rights for photos appearing briefly in viral videos. Whether the courts would consider that one market or two separate markets is hard to say. Similarly, Wired is a commercial entity, whereas this video appears to be somebody's personal project. Again, it's hard to say how that might factor into the court's deliberations.
  • Doug: that's what credits at the end (or on a webpage somewhere) are for. If you went to the trouble of searching for thousands of clips, and then spent many hours editing them together, then surely the additional minor trouble of documenting what you did is not a big deal?

    (I can't believe I'm arguing in favor of attribution here, but there you go.)
  • Tom
    I'm inclined to surrender to your greater familiarity with copyright law, Tim, but I still don't think this use is very ambiguous. Consider how the picture was originally used (and sold): Wired News purchased the rights to use it to adorn some of their blog posts. It was used in a decorative, illustrative manner.

    If the video is fair use, then I don't see why Wired was obliged to pay the photographer for her work in the first place. In other words, I don't see how this could be considered fair use without invalidating the entire freelance news photographer business model.

    Preserving business models is not a good way to determine appropriate IP policy, of course, but given that people have made their living selling photographs for quite a while I'm going to go out on a limb and assume they're doing so from a solid legal foundation.

    As a parallel case, consider music samples. The use seems similar to me (in fact, the video seems less transformative), but of course artists still have to clear samples and/or pay royalties.
  • pilgrim
    Tim, Tom's ultimate conclusion about whether the use is fair might eventually be supported by a court, but Tom himself is most certainly not "right" in his assessment, either of what Michael Arrington actually posted on TechCrunch, or in the fragment of legal analysis he includes in his post. (And for Tom to characterize Arrington's post as "pissy" is rich. Tom, meet the kettle. You're both black. And pissy.)

    Arrington didn't assert (or at least, did not assert in the post you and Tom link to) that *any* parody is automatically allowed as "fair use." Rather, in his (admittedly heated) post, he claimed the use of the photograph in the video was clearly a fair use, and mentioned a few reasons: the minimal effect on the market (i.e. one of the Sec. 107 factors), the "progress of ... the useful arts" which is a claim directly to the Copyright Clause (and of some limited value in actual cases), and the fact that the work is a parody. Parody isn't it's own special defense -- it's just a subset of permissible "fair use," tied to other factors such as whether a work is transformative, the effect on the market, etc.

    It's also worth pointing out that you, Tim, may be overstating the case when you claim that a parody can only qualify as a fair use if the work being parodied is the work being copied. The parody/satire distinction isn't as strong as you suggest. William Patry's wrote about an illustrative case, Burnett v. 20th Century Fox, on this point earlier this year, and Bruce Keller and Rebecca Tushnet have written about it as well.
    http://williampatry.blogspot.com/2007/07/i-was-maid-in-porno-store-ii.html

    And here's a discussion paper on the subject:
    http://www.abanet.org/litigation/committees/intellectual/roundtables/0506_outline.pdf

    And even if the issue were limited to strict parodies of the work itself, the fact that Harwell (the photographer) is snapping celeb-style pics of a business journalist (and that the photo originally appeared in a sort of social calendar-style Wired blog called "Epicenter" is, in essence, just the kind of bubble-era buzz that the video is parodying.

    That is not to say that I think it's a slam dunk fair use case. Tim, I tend to agree with your "on the one hand, on the other" analysis. In the end, I think it *is* a fair use, but a close enough call that it's not worth litigating. And of course, Harwell's already gotten more publicity out of her "whining" than she ever could have bought with whatever she charges for licensing (or with a photo credit in the video).
  • Doug Lay
    Luis:

    I basically agree with you about ettiquette, but what's the best way for collage video artists to give credit? They may use hundreds or thousands of snippets in a short work.
  • Of course, legality aside, using the picture without giving credit is just plain rude.
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