A portrait by Christopher Harris appeared, with permission, in a
book by Paul Elie, The Life You Save May Be Your Own: An
American Pilgrimage. When Mercury News reviewed that book in
2003, it published four photographs from the book, including
Harris's shot of philosophical novelist Walker Percy. Harris sued,
seeking $175,000.
Harris alleged copyright infringement and a breach of the
Digital Millennium Copyright Act. He pointed out that his copyright
notice had been removed from the photograph.
The newspaper argued that the use of the photo was covered by
the 'fair use' provisions of copyright law and, according to US
legal publication The Recorder, said it had printed Harris's
name beside the photo in its review. The fair use principle allows
commentary, parody, news reporting, research and education about
copyrighted works without the permission of the author.
Reporting its victory on Monday, Mercury News quoted its
attorney, James Chadwick: "This is a classic example of how
newspapers use material that is sent to them every day. If a
photographer or photo agency had veto over the use of these kinds
of images, then newspapers would just stop using them and readers
wouldn't get the visual information."
In UK law, fair use is known as 'fair dealing'. Under the
Copyright, Designs and Patents Act of 1988, fair dealing with a
work for the purpose of criticism or review, of that or another
work or of a performance of a work, does not infringe any copyright
in the work provided that it is accompanied by a sufficient
acknowledgement.
OUT-LAW spoke to Janet Ibbotson, Managing Director of the
Association of Photographers and Secretary of the British Copyright
Council. She indicated that a newspaper using a photographer's work
for reviewing a book in which the work appears would, in her
view, be considered fair dealing under the UK law. "It sounds
like fair dealing of a work for the review of another work," she
said, pointing out that she was not familiar with the US
ruling.
Fair dealing with a work – other than a photograph – for the
purpose of reporting current events does not infringe any copyright
in the work provided that it is accompanied by a sufficient
acknowledgement. No acknowledgement is required in connection with
the reporting of current events by means of a sound recording,
film, broadcast or cable programme.
In 1997, News Group Newspapers was sued by a photographer,
François-Marie Banier, for publishing his photograph of Princess
Caroline of Monaco without prior permission, albeit the newspapers
included an acknowledgement.
The court decided that the photograph was not used in The Sun to
review or criticise the photograph itself; instead, it was plain
copying and competing use with an attempt to disguise it as review
and criticism. The court rejected The Sun's argument that it was
common practice for newspapers to publish photographs in the event
that the copyright owner was not contactable, with licence fees
being paid afterwards.
