Time Inc, publishers of People magazine, and Getty Images, which
took the pictures, pursued websites all over the world in attempts
to stop the publication of the pictures before yesterday's
publication in magazines. Magazines are thought to have paid
between $5 million and $7 million in total for rights to publish
the pictures.
Gawker.com, amongst others, published a shot of the cover of
Hello magazine, which bought first UK rights to the pictures.
Unlike other sites, though, Gawker refused to back down when
contacted by Time, whose People magazine had bought the US rights.
Gawker is a New York-based site which pokes fun at the media and
celebrity industries,
"We stand by our belief that the image, which we have never
displayed outside the context of Hello’s treatment of it nor at
anything larger than thumbnail size, is an important news media
story that is within our rights to cover as part of our reporting
on the celebrity media industry," Gawker managing editor Lockhart
Steele wrote to Nick Jollymore, deputy general counsel of Time Inc.
Gawker has published its correspondence with Time Inc relating to
the case on its website. A spokeswoman for Time confirmed that the
published correspondence is accurate.
"We're firm in our right to report on Hello's treatment of the
story, one of the biggest celebrity media news stories of the
year," wrote Steele of Gawker.
"With all respect, this is not 'fair use' but wilful copyright
infringement in an attempt to use a valuable photograph to enhance
your site even though you have obtained no rights to do so,"
replied Jollymore.
The Time legal team said that it had co-ordinated its strategy
with Hello and that neither company would pursue the case further
if sites took down the images. "If they do not, we are
co-ordinating legal action," said Jollymore.
Jollymore warned that the law in England, where Hello is
published, was even more restrictive than in the US. Gawker
eventually switched the image from being a picture of the Hello
cover to being a picture of the People cover.
"In English law it would be a question of whether publishing the
photo on the web as part of the magazine cover was 'fair dealing'
with the copyright in the photo and it's clear to me that you
couldn't publish the photo under fair dealing in the UK," said Kim
Walker, media and intellectual property partner with Pinsent
Masons, the law firm behind OUT-LAW.COM. "The defence of fair
dealing for the purpose of reporting current events does not apply
to photographs."
"In the US, though, the 'fair use' exemption is looser and wider
and tends to take more account of public interest considerations
when assessing fairness", said Walker.
Gawker later published images reproduced from the actual photo
shoot from inside the magazine, which it subsequently took
down.
Getty Images spokeswoman Alison Crombie said that the initial
image was probably taken on a mobile telephone at some point in the
printing or distribution of Hello magazine in the UK. "I don't
think this will really affect the value of the pictures," she
said.
Getty Images is agent for the rights sales and a spokeswoman
said that neither Getty nor the celebrity parents would receive any
money. "There is no money in it for us, it will all go to the
charity they choose," said Crombie.
