Hard to say for sure, but in the end, it probably is a fair use. On the one hand, the Video does use Lane’s photo without permission or attribution. Plus, this is how Lane pays her rent. She takes and licenses photos for a living. Uses like this, if they were to become widespread, could potentially undermine her livelihood and thus, her ability to take photographs like the one used in the video. Thus, there is an argument under Factor 4 that this is not fair.
However, the other three factors probably weigh in the Video’s favor. First and foremost, what The Richter Scales did was what copyright law often calls “transformative use” — using other people’s copyrighted works in a new way that adds creativity and cultural value. And while perhaps not a direct parody of Lane and her specific work, the inclusion of the photograph in the video was part of an overall commentary on the world that Lane photographs and the people in it. One could even argue that Lane is a part of that world herself and thus, implicitly part of the subject matter TRS intended to comment on. (Note: I haven’t talked to TRS, so I have no idea what they intended). Some courts have found fair use in similar cases involving Barbie dolls, use of concert posters in a book about the Grateful Dead, the Mastercard “Priceless” ad campaign, a Family Guy parody of Carol Burnett, and 2 Live Crew’s cover of Roy Orbison’s “Pretty Woman.” Of course, other courts have come out differently, such as one decision over the use of Dr. Seuss-like rhymes in a book about the OJ Simpson murder trial. Still, overall, I think a court would find the video transformative and thus, that Factor 1 weighed in its favor.
Factors 2 and 3 would also probably weigh in favor of the Video. The photo is a published work depicting a factual occurrence (a person at a Web 2.0 event). It’s also being used for that purpose — to comment on the person being at the event. The amount of the photo taken is, of course, the whole thing, but with photographs its hard to apply this factor since few photos are useful in pieces. Courts have also found that when it is necessary to use another person’s entire copyrighted work to make your own commentary, that weighs in favor of fair use. Given that three of the four factors are likely in the Video’s favor (including the critical Factor 1), the Video is probably fair and not illegal.
As Schultz points out, this isn’t really the sort of issue copyright law was designed to resolve. Norms are likely to be more effective than laws in this sort of situation. Given that the video wasn’t a big money-maker, it’s not reasonable to expect them to pay her for using the photo, but it is reasonable to expect them to give her credit. And if they fail to do so, it’s worthwhile for the tech blogosphere to criticize them for failing to respect those norms.
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