Pictures Deserve 'Fair Use' Protection, Too

A lawsuit by the New York Times could raise legal barriers to commenting on images. Let's hope it does the opposite.

The power of images.

Photographer: NOORULLAH SHIRZADA/AFP/Getty Images

It’s been called “ridiculously petty” and a “hissy fit,” but a copyright lawsuit filed by the New York Times against the author and publisher of a book critical of the newspaper’s war photography could turn out to be good news for commentators on our image-saturated culture — if it gets to court.

The book is War Is Beautiful by David Shields, who argues that from the beginning of the war in Afghanistan, the Times systematically selected front-page photographs that “glamorized war and the sacrifices made in the service of war.” To make his case, he reproduces 64 photographs, each on a separate page, and classifies them into categories such as “Father,” “Painting,” “Movie,” and “Pietà,” based on their aesthetic elements. Inside the back cover, the book shows the photos in their original context, with a thumbnail of each front page, about 2 inches by 3 inches. (The cover also includes essays meant to be read as part of the text, making it more integral than the usual dust jacket.)

Shields licensed each photo but not the thumbnails. The Times claims that the tiny reproductions violate its copyrights. But Shields has a good case that they constitute “fair use,” the legal exception that allows creators of new works to use bits of old ones without violating copyrights.

The idea is simple. If every blogger, book reviewer, scholar, and nonfiction author who quoted a paragraph or two from another work had to fear a copyright suit, the cultural conversation would atrophy. Rather than encouraging the production of new works, copyright protections would deter them. Arguments would go unanswered, works uncritiqued, theories undeveloped. Instead of reporting what people actually said, writers would have to paraphrase -- and readers would have to trust them.

The fair use doctrine is designed to provide the slack to permit new works without hurting old ones. Developed first through judicial rulings and then codified in the 1976 U.S. copyright statute, the law lays out factors to consider: the nature of the new use, the nature of the original work, how much of the old work is used, and how the new use might affect the value of the original. But it doesn’t say how courts should weigh those factors or exactly what they mean. “There is nothing straightforward about fair use,” explained UCLA law professor Eugene Volokh in an interview. The rules are flexible and case-specific.

Although the law is far from clear about exactly what qualifies, when quoting from published works writers have a pretty good sense, by virtue of long-standing custom, of what will pass muster. Images are a different story. The legal rules are the same, but they’re harder to interpret. Until recently, images were expensive to duplicate and reproduce, so customs of fair-use “quotation” and commentary didn’t develop.

With relatively few legal precedents to go on, publishers tend to be skittish about claiming fair use for images, lest they have to fend off lawsuits. (Even a losing suit is expensive to fight.) The result is a bizarre situation in which amateurs engage in rampant online copyright violations, while rights-clearance issues deter serious commentary on visual culture.  And today’s profusion of images makes that commentary all the more important.

Fewer lawsuits also mean fewer court decisions, which means the law stays vague. That’s why the Times suit could wind up strengthening fair-use claims.

The newspaper’s suit seems like a loser. In a 2006 case called Bill Graham Archives v. Dorling Kindersley Ltd., the U.S. Court of Appeals for the 2nd Circuit, whose precedents would apply to the Times suit, ruled that publishing thumbnail images of Grateful Dead concert posters in a coffee table book on the band constituted fair use. The court deemed the new use “transformatively different” from the original and noted that their small size strengthened that critical element of its analysis, since the publisher “used the minimal image size necessary to accomplish its transformative purpose.”

The Times thumbnails are even tinier — so small that the headlines are barely legible. No wonder Georgetown University law professor Rebecca Tushnet opined that the paper “has, quite unwisely, sued over this textbook (coffee-table book?) fair use.”

In publishing the Times front pages without permission, Shields and his publisher, PowerHouse Books, may have intended nothing more provocative than an author reproducing some damning quotations to build an argument. By foolishly choosing to litigate, the Times opened up a rare opportunity to set another precedent in favor of visual fair use. Here’s hoping they don’t come to their senses.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.