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On June 11, 2017, a photograph of President Donald Trump crashing a wedding a day earlier at his golf course resort in Bedminster, New Jersey, went viral.
Jonathan Otto, a vice president at Deustche Bank, snapped the photo on his iPhone. He sent the photo of Trump with the bride to another wedding guest, Sean Burke, who apparently sent it to others, including a relative of the bride, who posted it on Instagram. That’s when the media discovered it. After the photo appeared on TMZ and CNN and in The Washington Post and the Daily Mail, Otto texted Burke and asked, “Hey, TMZ & others using my photo above without credit/compensation. You send to anyone? I want my cut.”
Subsequently, Otto retained lawyers and sued. On Monday, he became the beneficiary of a decision from a judge who decided that the photo that ran on Esquire‘s website in a story titled “President Trump is the Ultimate Wedding Crasher” didn’t constitute a fair use.
Holding that Esquire‘s parent company Hearst Communications is liable for copyright infringement, U.S. District Court Judge Gregory Woods writes, “Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose — regardless of whether that photograph was created for commercial or personal use.”
Hearst certainly argued otherwise by pointing out that the photo was taken for personal use while here it was used for news. That’s transformative, said the news company.
“The Court has not found any law supporting this point, and the existing precedent requires the opposite conclusion,” responds Woods. “Though news reporting is specifically named in 17 U.S.C. § 107 as a potential method of fair use, a news reporting purpose by no means guarantees such a finding. … It would be antithetical to the purposes of copyright protection to allow media companies to steal personal images and benefit from the fair use defense by simply inserting the photo in an article which only recites factual information — much of which can be gleaned from the photograph itself. If so, amateur photographers would be discouraged from creating works and there would be no incentive for publishers to create their own content to illustrate articles: why pay to create or license photographs if all personal images posted on social media are free grist for use by media companies, as Hearst argues here?”
Ruining the incentive to snap photos of weddings? That’s not all the judge has to say on the topic of amateurs who create copyrighted work only to find media companies exploiting works as if anything posted on social media is public domain. For when the judge gets to the fourth factor governing fair use — the effect of the use on the potential market — he basically upholds anyone’s right to be greedy.
Sure, there may be instances when an amateur has no intention of entering a market, and thus there can be no adverse effect from misappropriation, but Woods says that’s not the case here. Thank you, Harvey Levin.
“It is clear from Otto’s communications with TMZ and Burke the morning after the wedding that he did have an interest in entering the market upon realizing the value of his work,” states the order. “The creator of a work should not be precluded from future profits should they lack the marketing prowess to capitalize on their work at the time of creation. Otto’s status as an amateur photographer with an iPhone does not limit his right to engage in sales of his work.”
Of course, from here, the judge goes on to caution that a fair use analysis is context dependent with emphasis on the facts at play. Woods aims to set some minds at ease by offering the following disclaimer: “It is not unreasonable to think that the use could be considered fair in another matter involving a news publisher’s incorporation of a personal photograph.”
Nevertheless, Donald Trump, wedding crasher, has become Hearst, copyright infringer.
Here’s the rest of the decision, which takes up other issues including why Otto didn’t waive his copyright claim by sharing the photo with his friend while reserving the question of whether Hearst acted willfully for trial. That latter issue will help determine what Hearst has to pay in damages. If it is willful, Otto guided by his attorneys Richard Liebowitz and James Freeman can elect statutory damages (up to $150,000 but more typically $30,000-$50,000). If not, Otto may take actual damages (say, lost licensing income) and profits attributable to the infringement. Then again, there’s a good likelihood this case now settles and becomes somewhat of a warning to those in the media business.
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