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Tuesday, November 10, 2009

Is Fair Use Really Fair?

As it exists today, “fair use” is a confusing and complex problem for photographers

Fair Use Foibles
Given the confusing nature of the fair use factors, and in light of the efforts of various groups advocating to expand the scope of what constitutes fair use, it’s hardly surprising that nonlawyers have a somewhat skewed sense of what constitutes fair use.

Recently, The New York Times found itself in the unenviable position of having to do damage control after one of its writers suggested using images downloaded from the Internet photo-sharing site Flickr to decorate her apartment.

On June 24, 2009, Sonia Zjawinski admitted in The New York Times’ Gadgetwise blog entry “Flickr as an Interior Decorating Tool” (gadgetwise.blogs.nytimes.com/2009/06/24/flickr-as-an-interior-decorator-tool/) that she regularly visits the Flickr photo-sharing website in search of photographs to download, print, frame and hang in her New York apartment. As Zjawinski explained, “[a]nd if you’re wondering about copyright issues (after all, these aren’t my photos), the photos are being used by me for my own, private, noncommercial use. I’m not selling these things and not charging admission to my apartment, so I think I’m in the clear.”

It didn’t take long for Zjawinski’s suggestion—which many viewed as an endorsement for stealing copyrighted images—to generate a re-sponse. Within roughly 24 hours, 50 follow-up comments had been posted to the blog, ranging from suggestions that The Times take down the article to outright attacks on The Times’ journalistic integrity (234 responses were posted as of the writing of this article). More than a few responses described Zjawinski’s actions as “illegal” and even bluntly described it as “theft.”

In an effort to justify the original column, Zjawinski and The New York Times published a follow-up column two days later. Far from being the apology or clarification readers and commentators had suggested would be appropriate, Zjawinski reported her conversation with Falzone. Falzone suggested that Zjawinski’s situation with Flickr was analogous to the 1984 Supreme Court decision of Sony Corporation of America v. Universal Studios. In that case, the Supreme Court held that Sony couldn’t be held liable for contributory copyright infringement because the device they manufactured, the VCR, had substantial noninfringing uses. In plain English, the manufacturer of a VCR wouldn’t be responsible for encouraging the illegal copying or recording that might be done with the VCR since there also were many legal uses for the VCR.

Falzone, however, focused on the activity that Universal Studios complained of, namely that the VCR would permit home viewers to engage in what was called time-shifting—recording televised programs for personal viewing at a later time—which the Supreme Court determined to be fair use. Ultimately, Falzone suggested to Zjawinski that “if someone decides to download an ‘All Rights Reserved’ image from Flickr and put it on their PC desktop or print it out at home, they should be covered under fair use” under the same rationale that applied to time-shifting.

In truth, attempting to draw parallels between time-shifting and using images copied from Flickr for interior-decorating purposes may not be an entirely fair comparison. The problem with such a comparison becomes apparent when the fourth of the fair use factors is applied to the two situations. In the case of a televised program, it easily could be argued that time-shifting doesn’t negatively impact the market for the televised program (considering the number of times that programs are rerun on television, this argument becomes even stronger). In the case of photographs displayed on Flickr, however, an argument easily could be advanced that downloading and printing the images without consent has a very real impact on the market for the work. If people could simply copy and print such images, they would never pay the photographer for a legitimate copy of the same print, and the photographer would be deprived of the rewards that the U.S. Constitution and Congress intended the photographer, as a copyright owner, to receive.


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