Patterico's Pontifications

3/15/2008

AP Threatens Blogger for Unauthorized Reproduction of Photos . . . Then Reproduces Photos Without Authorization

Filed under: General — Patterico @ 2:31 pm

So let me get this straight.

Brian Ledbetter republishes AP photos to criticize the AP, without making money, and he gets threatened with a copyright lawsuit.

Meanwhile, Ashley Alexandra Dupre has equally copyrighted photos of herself on her website — photos that no doubt would have netted her considerable cash had she been paid for reproduction rights — and those photos are taken and reproduced without permission by (among many others) . . . the AP. Which (unlike Ledbetter) no doubt made significant money from the photos’ redistribution, as they were clearly in high demand.

You might think that Ledbetter has noticed the irony — and indeed, he has.

I think Ledbetter and other bloggers have a much better fair use argument for repoducing AP photos when relevant to a story than the AP has for this use of Dupre’s photos. Who do you think has the better argument that their use does not diminish the market for the image? Yeah, me too.

But in reality, it seems the limits of fair use are determined, not by concepts like permission, market diminishment, and newsworthiness, but rather by who has the highest-priced lawyers.

I guess that makes fair use like a lot of other things in our society.

UPDATE: I see that Jules Crittenden has similar thoughts. And Instapundit agrees with me that Ledbetter has a better fair use argument than does the AP.

UPDATE x2: Mark Steyn on the possibility of a Dupre lawsuit: “It’s not often you get a case where there’s someone in the room with a higher hourly rate than the lawyers.” Good one.

27 Responses to “AP Threatens Blogger for Unauthorized Reproduction of Photos . . . Then Reproduces Photos Without Authorization”

  1. Working in both church and school there are LOTS of occasions to fall foul of the intellectual property laws, even when you’re trying to be fair. The “fair use” provisions are sufficiently vague to leave the user in a constant state of uncertainty.

    This looks to me like a good case for… (dum da da DUM) jury nullification!

    Don (c9e244)

  2. Snapped shot was criticizing the photos themselves (fair use).

    AP was merely reproducing the photos to illustrate its stories (not fair use).

    Using a photo of an illegal immigrant to write a blog post about illegal immigrants is not fair use. Using a photo of a staged Palestinian demonstration, to point out evidence inside the photo itself that the demo was staged, is fair use.

    Using photos of “Kristen” to illustrate a story about Kristen: not fair use. Using photos of Kristen to illustrate a story about photos of Kristen being stolen: maybe fair use, but the original offender shouldn’t be able to justify future theft by claiming merely to be reporting on their past theft as a news story!

    Daryl Herbert (4ecd4c)

  3. UPDATE x2: Mark Steyn on the possibility of a Dupre lawsuit: “It’s not often you get a case where there’s someone in the room with a higher hourly rate than the lawyers.” Good one.

    “I don’t care who you are, that’s funny right there…”

    Scott Jacobs (d3a6ec)

  4. I have a dream…
    That the networth of the AP will fall lower than Enron.

    Another Drew (8018ee)

  5. I’m definitely enjoying this little turn of events! :)

    Respectfully,
    Brian

    Brian L. (889fd7)

  6. She does have the better argument, but it’s still a weak one — in my opinion, a losing one. Fair use ought to include both situations here.

    If she didn’t want them picked up, she shouldn’t have both (a) posted them on the internet and (b) had sex for money with the governor of New York. But someone doing (b) becomes a legitimate figure of public interest, controversy, and commentary; when the very basis of that interest and controversy is so closely linked to her appearance, then what appearances she chooses to publish of herself on the internet likewise is a legitimate matter of public interest, controversy, and commentary.

    And good luck to her in proving damages anything other than nominal damages. In fact, the photos’ wide publication almost certainly set her up for further publicity that she can (and probably will) exploit commercially.

    Beldar (433d17)

  7. Beldar, you’ve got a point but I think we can argue about how strong the fair use argument for using her photos is. I think I can make a good case for defeating a fair use defense myself.

    But in copyright law, there are provisions for statutory damages where a plaintiff cannot prove actual damages.

    But there would be plenty of evidence of the value of that kind of photo.

    SPQR (26be8b)

  8. To further explain, by comparison:

    Suppose Gov. Spitzer had claimed that his and Ms. Dupré’s clandestine meeting in the Mayflower Hotel had been for the sole purpose of him listening to her singing, examples of which are also posted on her MySpace page. Suppose further that some sizable portion of the public doubted Gov. Spitzer’s proffered excuse, and suspected instead that they met for some more illicit purpose, commercial or otherwise. The AP, in effort to investigate and then report on the topic of Ms. Dupré as a singer, posts a .wav file, cut down from one of her purportedly copyrighted MySpace recordings, on its own website so that its readers can listen to her and draw their own (better-informed) conclusions. (As with all “fair use” arguments, AP’s defense would be much better if it only excerpted, rather than republished the entire .wav files posted by Ms. Dupré herself.) On this hypothetical, AP’s fair use defense is not only straight-forward, but a probable winner (subject, as always, to the vagaries of juries and reviewing judges).

    Now for “singer,” substitute “admitted prostitute.” The public interest is now more of a prurient one, but it’s still intense and legitimate.

    Now if AP took all her photos and recordings, put them up on a new website, and began charging subscription fees for them — that would be a pretty good copyright infringement case, without a plausible fair use defense.

    Beldar (433d17)

  9. SPQR: Statutory damages can vary from $200 to $150,000 per work, and the threat of them can indeed be used in an attempt to bludgeon the alleged infringer into a settlement. Ditto, and moreso, the availability of attorneys’ fees to the prevailing copyright infringement claimant; and many, many the case turns into one in which the claimed attorneys’ fees rapidly exceed any arguable commercial value or actual damages.

    In the real world, though, there’s a generally positive correlation between commercial value and ultimate judgment size. Where, as here, AP has very arguably done her a huge favor through its publicity, that’s something that evaluating lawyers, and eventually courts and juries (at trial), would take into consideration, and it might become determinative.

    Beldar (433d17)

  10. The DIASSOCIATED PRESS just another bunch of liberal left-wing brown shirt thugs

    krazy kagu (a2e13d)

  11. Beldar, I think that the reality is more of a middle course in this argument. The fair use issue is more of a 50/50 thing – not a slam dunk IMO.

    The fair use question would hinge more on whether or not the photos themselves are the subject of news rather than merely AP’s attempt to illustrate a story about her. With your example, the photos are at least one degree away from the actual news.

    The rebuttal to the fair use defense, is that such a defense swallows the right ie., that if AP using the photos without permission were allowed, then AP would be able to argue that any photo of any newsworthy person would be fair use.

    SPQR (26be8b)

  12. In the real world, though, there’s a generally positive correlation between commercial value and ultimate judgment size. Where, as here, AP has very arguably done her a huge favor through its publicity, that’s something that evaluating lawyers, and eventually courts and juries (at trial), would take into consideration, and it might become determinative.

    Gave her publicity while destroying the value of the photo itself? No, I can’t buy that one. The publicity she got was from her involvement in the news. The value of the work – ie., her photos ( Beldar and I are both assuming she can prove authorship ) were nonetheless destroyed by being run in every news paper in the world.

    SPQR (26be8b)

  13. I think a better argument for AP to use to reduce any award of damages would be that she’d already published them for free.

    SPQR (26be8b)

  14. Stein:

    “It’s not often you get a case where there’s someone in the room with a higher hourly rate than the lawyers.”

    Heh. Not only that, I think even her ethics could be higher too.

    Who knew her more tawdry profession could lead to “honest work,” or at least an honest payout, via even more exploitative institutions we recognize as “legitimate”? Publishers want her body. Writers want her story. Television/infotainment wants its feature exposé. Journalists want her photos. Multimedia wants her, um, music.

    What a world.

    AnonymousDrivel (3c47c8)

  15. SPQR, what do you think of the argument that she is a public figure, for this purpose, and that republication of the photos is protected not under copyright law fair use but First Amendment freedom of the press, in order to paint an accurate picture of her. Similar to, say, Michelle Obama’s senior thesis?

    nk (8a8387)

  16. Justice- it goes to the highest bidder

    G J Corby (06c5c8)

  17. nk, there is no separate “First Amendment” exception to the copyright statute. Again, such an exception would swallow all of the original statutory right. I’d stick to the fair use exception.

    Her status as a “public figure” alters the libel analysis, should she sue on such a theory for statements made about her, but does not create an excuse to publish her copyright protected works.

    SPQR (26be8b)

  18. SPQR: Because of the nature of her celebrity, what she looks like IS news.

    I wouldn’t characterize it as a slam dunk. But I think AP has the better of the argument here. (It wouldn’t if it had also reproduced her copyrighted songs; they’re not news. And by the way, I’ve read that she’s already made $200k+ from selling downloads. I’m guessing without her pix circulating on the net, her revenues might possibly be $200.)

    Beldar (433d17)

  19. “Mark Steyn on the possibility of a Dupre lawsuit: “It’s not often you get a case where there’s someone in the room with a higher hourly rate than the lawyers.”
    ======

    True – but nobody can screw you better than a lawyer, so it all balances out.

    Rick Thompson (bb0275)

  20. The comments made here about Dupre’s “public figure” status are missing the point. AP can defend as legitimate its editorial use of the likeness of a public figure; however, the question here is related to authorship of the images.

    By being newsworthy, Dupre loses a degree of what most of us consider the right to privacy. However, she emphatically does not lose the rights associated with her copyright on specific images. Those rights — public display, distribution, duplication, and creation of derivative works — cannot be usurped by a news agency just because it wanted to use her likeness for editorial reasons.

    Whether she’s chosen to publish the photos herself or not, whether she’s made them freely available or not, whether AP has made any money from their use or not… all that is irrelevant except in how it may be used to estimate her monetary damages from the copyright infringement. She still retains those rights to those images. If AP photographers didn’t take the photos and AP didn’t pay the copyright holder for its use of them, then AP is wrong in a big, bad, actionable way. No matter how unsavory a character she may be.

    Bottom line — Just because she’s a hooker, doesn’t let AP off the hook.

    geek (613ac9)

  21. Don’t even get me started on this topic…

    Justin Levine (5ba361)

  22. Patterico,

    You’re *not* going to believe this, but it would seem that there were actually wire services that behaved “responsibly” here. It gets better—Wait until you read their explanation (my followup) as to why they didn’t run the photos!

    I like the smell of schadenfreude in the morning. ;)

    Respectfully,
    Brian/snapped shot

    Brian L. (889fd7)

  23. Update: Looks like the sharks are starting to smell the blood in the water. The counsel for Ms. Dupré has just put the entire media on copyright notice—Will subpoenas be following shortly?

    If I may quote Glenn without violating his trademark: HEH™.

    Respectfully,
    Brian Ledbetter
    “Snapped Shot”

    Brian L. (889fd7)

  24. Now THAT is a dedicated public-aid lawyer.

    Good on him!

    Scott Jacobs (d3a6ec)

  25. rather, dedicated court-appointed lawyer. My bad.

    Scott Jacobs (d3a6ec)

  26. Though not a lawyer, I have worked in the entertainment industry as a peon, a producer and several jobs in between. Ms. Dupré has an absolute slam dunk of a case. AP will settle and will do so for a nice sum (I’m sure AP knew this when they swiped the photos and have already allocated the money to make the payoff. They’ll make all the standard “fair use” arguments, but only as a point of negotiation.)

    Of course the real payout for Ms. Dupré will be accepting an offer from one of the big three men’s magazines.

    Joe (dd6105)

  27. “UPDATE x2: Mark Steyn on the possibility of a Dupre lawsuit: “It’s not often you get a case where there’s someone in the room with a higher hourly rate than the lawyers.” Good one.”

    It is a sliding scale. As lawyers age and gain experience their hourly rate is likely to increase. However, as Dupre ages and continues to gain experience her hourly rate will head in the opposite direction. In fact, this month is likely her high water mark. The intense interest in her will wane rather quickly. She better capitalize on her 15 minutes because the news cycle will shift to another stupid story in no time.

    largebill (8f225f)


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