Fair Use and the Fourth Estate

April must be copyright month. Those who follow copyright, photography and the free press will have their interests piqued by the Southern District of New York’s holding of fair use as a defense to infringement involving the events of Jan. 6, 2021, Fox News and a freelance photographer who, on January 6, was at the Capitol and filmed the activities.

In particular, she videoed Kelly Meggs participating in a stack formation ascending the Capitol’s stairs. The Department of Justice charged Meggs and attached to its complaint a copy of a still from the photographer’s video.

Months later, Meggs was interviewed from jail by a Florida Fox reporter and the still from the Department of Justice Complaint appeared twice in the TV news segment; once for 10 seconds and then for 16 seconds.

The back and forth between the photographer and Fox is unknown, but likely she demanded a royalty for use of her films and Fox refused. She sued for copyright infringement. Fox raised the existence of an affirmative defense of fair use in its Motion to Dismiss.

The very unusual thing about this decision was that Judge Denise Cote, on Fox’s Motion to Dismiss ruled that Fox’s use, based on the facts alleged by the photographer in her Amended Complaint, was a fair use. A determination of fair use is generally a question of fact, and sometimes could be raised on a motion for summary judgment following discovery.

Although the judge quoted the United States Supreme Court that, “fair use presents a holistic, context sensitive inquiry ‘not to be simplified with bright-line rules[.]… All [four statutory factors] are to be explored, and the results welded together, in light of the purpose of the copyright,’ ” she held that because the photo outtake was being used for news reporting, one of the purposes identified in the preamble to the Act’s fair use section, there exists a strong presumption in favor of fair use. And from there she began her analysis.

She examined each of the four non-exclusive statutory fair use factors, finding that on the basis of the amended complaint each supported Fox News’ use as fair. The first three may be a proper subject of her very early-stage ruling; whether the use is transformative, how much of the work was taken and how important is what was taken and the nature of the work. But, the judge ought to be reversed on her conclusion without any supporting evidence that Fox’s use did not affect the potential market for the work — called by courts the most important fair use factor. Years back, the Supreme Court in Campbell v. Acuff-Rose considered market effect on fair use. There, the Court failed to assess the effect of 2 Live Crew’s parody on the value of Acuff-Rose’s “Pretty Woman.”

And speaking of the Supreme Court, we may see in April, a ruling in the Andy Warhol, fair use, copyright case argued in October. Maybe this decision will clarify issues related to Fox’s use and its effect on the market.

Finally, artificial intelligence has been dominating the news, and AI has intrigued those who ponder to what extent human prompted, code created, works are protectable under copyright. The issue has prompted the Copyright Office to issue a statement of policy intending to provide guidance to would-be registrants of work created in whole or part by device or machine. It’s worth a read, but the executive summary is that human authorship is a requisite to registration. In this regard, it inquires, “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work … were actually conceived and executed not by man but by a machine.” The statements provide guidance for submitting AI-related works for registration, but would appear to rely on self-reporting. The idea of copyright protection for AI is in its infancy and while the Registrar may refuse copyright registration, doing so does not preclude an infringement suit and a judicial determination that the work is protectable. The next decade should be interesting as AI cases wind through the courts.

And some thought April only brought spring showers.

James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches trademark and unfair competition law at University of Baltimore Law School. He and partner Donna Thomas are the authors of “Law of Advertising.” 

If you need assistance with an intellectual property law matter, contact Jim at jastrachan@gdldlaw.com.

This article was originally published in The Daily Record.