March 10, 2008
A View of "Fair Use"
Recently, Brian Ledbetter's photojournalism criticism blog Snapped Shot came under fire from the Associated Press for allegedly infringing on AP's copyrights, causing Ledbetter to take his site offline.
Snapped Shot came back online several days later, sans images, with many bloggers only a little less confused about what constitutes the "fair use" of agency images.
I sent a request to AP Director of Media Relations Paul Colford this past Friday for a statement clarifying their view of what constitutes fair use, and the Associated Press provided the following response via email:
AP licenses its works (photos, news stories, video and so on) to newspapers, Web sites and broadcasters for the purpose of showing news events and to illustrate news stories or commentary on the news events.
If the entirety of the work is used (such as when a whole photo is reproduced), that is considered a substantial "taking" under fair use law. If there are many photos used, that is a substantial taking of AP's photo library.
In the case of criticism, the commentary or criticism has to be about the protected work, not commentary or criticism in general – not using, as in the case of Snappedshot.com, protected photos to illustrate something on which the blogger was commenting. One cannot post a copyrighted photo of President Bush to illustrate commentary criticizing the policies of his administration, for example.
Fair use does not give others the right to use AP content without paying for it, especially when the costs -- and risks -- of gathering news around the world continue to rise. As a result, the AP has been increasingly vigilant in protecting its intellectual property.
I agree unreservedly with the Associated Press that using an image merely for purposes of illustration is outside of fair use, and will seek to go through my 2,700+ post archive and remove images that violate this of my own accord in coming weeks.
According to the AP's response posted above, however, it does appear—and tell me if I'm wrong—that it is still acceptable to reproduce images that are the direct subject of criticism, or as the AP states it "the commentary or criticism has to be about the protected work."
In other words, the context of the blog post the image is presented in matters.
For example, merely posting the below Reuters image of their press vehicle hit by Israeli fire in 2006 in a general blog entry about media casualties in war would be unacceptable under "fair use" guidelines.
If, however, the photo in question is the subject of criticism, then you have a case of "fair use."
Hopefully, this clears things up.
Posted by Confederate Yankee at March 10, 2008 11:53 AM
Thanks for getting that pretty unequivocal statement from the AP, CY. Your interpretation of "fair use" jives completely with what my handful of private IP experts have been telling me, and that's precisely why I've ended up doing things exactly the way I have. (Y'all are welcome to e-mail me—remove the dashes from the URL—if you want any specifics, of course...)
I'm currently in the process of going through and reviewing my archive, separating the photo-criticism from the general tomfoolery in my content as a result of the AP's warning, which is a long and painstaking (remove the dashes from the URL) task, but one that will hopefully allow me to bring back most (if not all) of the AP content that I've found specific problems with.
I can't recommend enough that all bloggers need to read Gabriel Malor's excellent explanation of "Fair Use" in the blogosphere—While nothing's guaranteed to keep us out of the courtroom, following his advice would certainly help towards that end.
As an aside, there are still ways of having fun with the wire services that don't involve raising the ire of the wire service lawyers, at the expense of anyone browsing Snapped Shot a month or so from now. It's worth it for me, so long as the aforementioned lawyers remain happy.
It still doesn't clear it up for me, dummy that I am. Most photos are used to illustrate/enhance a linked story and are not used to write a story about the photo itself. A photo helps put the content of a story in context, but that would seem to be a violation. Right? Wrong? Huh?
I said this in regard to Gabriel's explanation and I'll say it here, the copyright laws are terribly arcane and need to be updated to cover electronic publishing and blogs who give full credit and links to the originals. I was called a bad parent and a thief for voicing that opinion, so I take a risk repeating it here.
The basic problem is this: The wire services don't actually "publish" any of the photographs that you see out on the internet. As a result, these photographs remain the private, copyrighted property of the wire service that created it. The way that websites "legally" obtain the rights to "publish" these photographs, is to obtain a license from one or more of the wire services that provide photographic services.
(It's essentially the same process that newspapers have to go through in order to run wire photos, except the fees are a *lot* higher for our dead-tree friends.)
I was going to go through and write up an example of what it would take to legally license AFP photos from Getty Images as a followup to Gabe's article, but I gave up once I saw the costs involved.
For example, to legally license a 300-pixel-wide photograph for a duration of two years would cost $495 per picture; a lower-resolution 198-pixel-wide photograph could be licensed for a maximum of 2 months at $49.
This would add up pretty quickly if you were to do so for each individual photograph (and recall, I'm only using AFP price quotes here), so there is a way to license the "entire" wire service feed for your website. This comes at the low, low rate of $60,000 per year, give or take a few ten-grand or so.
These fees are obviously too high for hobbyist bloggers to pay.
So what's the solution?
Well, until the wire services decide to join the 21st century, and come up with a low-cost way for individuals to syndicate their legally-protected content, the only solution you have is to not use wire photos.
I'd personally love to see someone (if you're a big-pocket investor out there looking for a project, I'm speaking directly to you right now) sit down with the wire service lawyers and hammer out a way by which a third party could offer syndicated access to wire service photos, at a hobbyist price point.
Anyway, I can't stress enough from my recent experience—If you don't know if you have the right to use a photograph or not (see the letter from the AP above for a general guideline), it's safer to not use it. That's definitely going to be my modus operandi going forward...
By the way, photographers are not exactly happy with the current status quo of the industry, either. Someone with really deep pockets might just figure out a way to "poach" some good photojournalists from some of the existing wire services, and come up with a much more efficient direct-to-market photo syndication service, if someone with really deep pockets were so inclined.
Again, with my warmest regards to all of you out there who have said deep pockets.
17 USC 107 - 118, fyi, are the Fair Use provisions of the Copyright Act. A good attorney could turn the AP into a pretzel over this.
Section 107: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
See this is why it is so confusing to us little guys/gals. Read what Steffan posted and it seems that covers the use of a single photo to accompany a blog post regarding the subject the photo documents. But, it also seems in direct contravention of what the AP writes above.
Notice that Section 107 does not convey you the right to use the photograph for "illustrative" purposes?
That's what the AP is specifically selling a license to do, it's not something that "fair use" allows, except under an extremely limited set of circumstances (criticism of the work, parody, and "educational" -- as in "classroom" -- use).
The court's interpretation of "news reporting," by the way, is strictly limited to the reproduction of copyrighted works in the process of recording the news. I.e., an AP photograph that has a copyrighted object in it would fall under this category. The AP photograph itself does not. Which provides no exemption to independent bloggers, as we don't generate a whole lot of "original" photographic content.
"Comment" is an interesting item—and perhaps I could have skated on that, as I was merely reproducing their works for "commentary" purposes—but again, this would have to be done in the venue of a court of law. With a high probability of epic failure.
The law is definitely not clear on this, and as nearly everyone that has written to me has said, the interpretation of "fair use" is something that individual judges are likely to interpret differently.
At the cost of full legal proceedings, of course.
"Criticism" is something that definitely provides "fair use" protection to the blogger, so if you're like me, and you enjoy finding flaws, mistakes, and misrepresentations in wire photographs, there's definitely some wiggle room there.
"Parody" is something that is commonly cited as a "fair use" of copyrighted work; the law is less clear on "satire." (And I can't personally tell the distinction between the two...)
As always, taking a "conservative" approach is a prudent thing to do. And the next time someone hassles you, be sure to ping your nearest internet superhero.
It is interesting to note what and why the copyright laws came to be in the US and what has become of them today. I fully understand and concur that producers of IP should reap the rewards, but I also know that control of IP initially was limited in time. This limiting of control of IP was to quickly add IP to the Public Domain so that new inventions and ideas could take place quickly in a new government.
There's another element of AP's position that hasn't been discussed. The question is, what is a "substantial" reproduction of the work for the purposes of the fair-use defense to copyright infringement. AP says that reproducing a complete photograph is "substantial" in relation to their copyright on that photograph, which I think is evidently correct. But what if a site (like Snapped Shot) reproduces many photographs and has a fair-use defense in each individual case? AP's response is that this would be "a substantial taking of AP's photo library". In other words, they claim copyright in their library as a whole as well as the photographs which compose it. And from my knowledge of case law, they have some basis for this. So if you reproduce a whole lot of photographs, even a whole lot of results from a particular search (everything tagged as "insurgent", for example) you have arguably infringed their copyright in their collection, and you had better be able to provide a fair-use defense for using their copyrighted collection as well as your defense on each photograph used.
Seems to be that illustrating their propensity for accepting enemy propaganda on face value in order to comment on and criticize the AP itself for editorial malfeasance would constitute fair use.
However, IANAL, and I'm no more than a kibitzer in this.
Incidentally, I was just checking out the Thomas database at the Library of Congress, and happened upon some historical and revision notes comprising House Report 94-1475 on the subject:
17 USC 107
(scroll 'way down)
Money quote: When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and reproduce such parts of the work as are necessary to permit understandable comment on the statements made in the work.
Think that might include friends and allies of either the State of Israel or the US? If so, AP is SOL.
Incidentally, I had to change the link because for some reason "h****e.gov" is considered questionable content. Gee, I wonder why? :)