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Photojournalism and "fair use": Fitzgerald v CBS Broadcasting

9 October 2007 - EPUK

A case recently decided by a Massachusetts court highlights the special protection given to news photographers under the UK Copyright Act, writes Charles Swan of Swan Turton.

Christopher Fitzgerald is a freelance photographer. In 1995 he took two photographs of a newsworthy event, a well-known mobster by the name of Stephen “The Rifleman” Lemmi being transferred by police to an undisclosed location shortly after his arrest. Fitzgerald was the only photographer at the scene.

Over the years Fitzgerald licensed his pictures of Lemmi 17 times, collecting $4,350 in fees, and sued or threatened to sue six times for copyright infringement, collecting a further $58,600 in settlements.

One settlement was with CBS, which used one of the photographs without Fitzgerald’s permission in some TV reports. CBS took steps after the settlement to ensure that the photographs were not accidentally broadcast again, but one copy remained in archives and this was again used without permission by CBS (“accidentally”) in 2004 when broadcasting a report about the sentencing of a member of Flemmi’s gang whose cooperation allegedly led to the 1995 arrest.

Fitzgerald successfully sued CBS for copyright infringement. CBS argued that its use of the photograph was “fair use”. Although news reporting is specifically referred to in the US Copyright Act as being particularly appropriate to the application of the fair use doctrine, the judge determined that another more important factor weighed heavily in Fitzgerald’s favour: “whether the defendant’s use inhibits the plaintiff’s production by negatively impacting his market.”

Fair use would destoy potential market

As the judge pointed out, if CBS’s use of the photograph was fair use, then all Fitzgerald’s previous licensing of the photographs to news media, and uses like them in the future, would also be fair use, destroying the only potential market for the photographs. “It is hard to imagine that freelance photojournalists would continue to seek out and capture difficult to achieve pictures if they could not expect to collect any licensing fees.”

The American concept of “fair use” is very different from the UK regime of “permitted acts” – a few of which involve the similar concept of “fair dealing”. US copyright law provides four general principles and then lets publishers and rights owners argue about how to apply them. UK copyright law lays down specific circumstances in which publishers can use works without permission.

In theory the American system is fairer. It is more flexible than the UK approach and allows the balance between publishers and rights owners to be struck on a case by case basis.

In practice the UK system gives clearer protection to rights owners, and arguably this is a fairer state of affairs. Publishers don’t get a chance to argue a defence unless their unauthorised use of a work falls squarely within one or other of the specified permitted acts provided for in the UK Copyright Act. Our more rigid system favours the “small guy”, because rights owners often don’t have the means to risk suing large publishers even if, as in the case of Christopher Fitzgerald, their claim is obviously justified and therefore ultimately likely to succeed. The cost of litigation is often too high, and the financial risks involved too great.

UK’s ‘fair dealing’

The UK Copyright Act is in fact very similar to the American one when it comes to news reporting. There is a “fair dealing” exception in the UK for “reporting current events”. The factors which UK judges take into account when applying our fair dealing exception are similar to those applied by US judges for fair use. The UK news reporting exception varies from US law in one crucial respect, however. It doesn’t apply to photographs.

A painting or even a video still can be published without permission in the UK news media, if the publication is “fair”, but a photograph cannot. The reason for this is precisely the reason identified by the judge in Christopher Fitzgerald’s claim against CBS. When passing the 1988 Copyright Act, Parliament made an exception for photographs because it recognised that (a) there would only rarely be cases when a photograph could fairly be used without permission for reporting current events but (b) the media would nevertheless try to rely on a fair dealing defence if it was available, just as CBS tried to rely on fair use, and © in practice, this would undermine news photographers’ markets, because the vastly superior economic muscle of the media would make it difficult in practice for photographers to protect their rights.

In other respects, of course, American copyright law favours rights owners more than our law does. The settlements which can be achieved in US courts are often much higher, thanks to jury trials and “statutory damages”. The damages which UK photographers can claim for infringement are rarely more than a licence fee, a factor which militates in favour of infringers. But at least here if you see your photograph being used in a news report without your permission, you can be certain that you won’t have to have an argument in court about “fair use”. Fairness doesn’t come into it.

This update is © Swan Turton and is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court.

Visit Swan Turton’s website at http://www.swanturton.com or email Charles Swan for more information about Swan Turton media law services.

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