Although publishers often cry “fair use” to defend their use of copyrighted images, two recent federal court decisions highlight the limits of that defense. In Dlugolecki v. Seth Poppel, et. al., the court held that ABC’s use of yearbook photos of Meghan Markle in a series of news reports about Markle’s recent engagement to Prince Harry did not constitute fair use. Similarly, in Coleman v. Home Box Office, Inc. et. al., the court rejected HBO’s argument that the use of plaintiff’s painting in a documentary about the stabbing of a girl by two friends who claimed they committed the crime to appease Slender Man, a fictional supernatural character, was not protected by the fair use defense.
The Dlugolecki case arose from a common practice among publishers: reproducing old yearbook photos of celebrities. In most instances, the original copyright holder is unknown, and the chance the photo will be recognized is slim. There is also a widespread misperception that the re-publication of the original image in a news report is sufficiently “transformative” to satisfy the fair use doctrine. The court in Dlugolecki, however, rejected that argument. While it recognized that ABC’s use of the photos for news reporting differed from the “memorabilia” use of the photos in the yearbook, the court concluded that the news reporting was about Markle’s life, not the photos, and thus ABC’s re-publication was not a fair use. In addition, the court held, once the photos were published ABC had essentially “scooped” its competition, which limited the potential market for licensing the photos.
In Coleman, the court faced another common scenario: the use of one creative work in another creative work on the same subject. The case arose from HBO’s use of plaintiff’s painting in a documentary about the fictional character Slender Man. The film included a close-up of plaintiff’s painting of Slender Man before panning out to reveal that the painting was being viewed on an Internet browser by an unknown user. While the Court did not rule out HBO’s ability to ultimately prevail at trial, it held that plaintiff’s allegation that the painting had been used for the same purpose for which it was originally created—i.e., to comment on the Slender Man mythology—was sufficient to defeat HBO’s fair use defense. The Court also rejected the argument that displaying the painting in an Internet browser transformed the work for fair use purposes.
Both cases highlight the risk that news reporting alone is not sufficient to satisfy the fair use test. Rather, the use of a copyrighted work in another work must focus on the original work itself and serve a different purpose to be considered a fair use. Anything else have the courts crying foul.