In the case of Jonathan Otto vs. Hearst Communications, Inc. in the Southern District Court of New York, Judge Gregory Woods has found that news organizations may not use personal images posted on social media without permission. In the event that personal images are use the infringer is legally liable to pay damages to the creator.
The case developed on June 11, 2017 when Otto, a vice president at Deustche Bank, was attending a wedding celebration at the Trump National Golf Club in Bedminster, New Jersey. Donald Trump made a surprise appearance and Otto snapped the photo on his iPhone of Trump with the bride. He sent the photo to another wedding guest, Sean Burke, who apparently sent it to others, including a relative of the bride, who posted it on Instagram. That's when the media discovered it. After the photo appeared on TMZ and CNN and in The Washington Post and the Daily Mail, Otto texted Burke and asked, "Hey, TMZ & others using my photo above without credit/compensation. You send to anyone? I want my cut.”
Subsequently, Otto retained lawyers and sued Esquire.com, one of the users of the image. Esquire is operated by Hearst Communications. He also brought copyright infringement actions against several other media publications.
The day after the photograph appeared in media outlet Otto registered his copyright of the photography with the United States Copyright Office.
Hearst made a motion for partial summary judgment in the case claiming a defense of Fair Use and that the alleged infringement was willful. In a Fair Use defense four factors must be considered:
1 – Purpose and Character of the Use
2 – Nature of the Copyrighted Work
3 – Amount and Substantiality of the the Portion Used
4 – Effects of Use on the Potential Market
In the
court filing Judge Woods said, “First, to the extent that Defendant is arguing that its use of the Photograph…is fair because the Photograph was created for personal use … the Court is unpersuaded. The Court has not found any law supporting this point, and the existing precedent requires the opposite conclusion. Though news reporting is specifically named in 17 U.S.C. § 107 as a potential method of fair use, a news reporting purpose by no means guarantees such a finding. ... It would be antithetical to the purposes of copyright protection to allow media companies to steal personal images and benefit from the fair use defense by simply inserting the photo in an article which only recites factual information — much of which can be gleaned from the photograph itself. If so, amateur photographers would be discouraged from creating works and there would be no incentive for publishers to create their own content to illustrate articles: why pay to create or license photographs if all personal images posted on social media are free grist for use by media companies, as Hearst argues here?"
When the judge gets to the fourth factor governing fair use — the effect of the use on the potential market — he basically upholds anyone's right to be greedy.
"It is clear from Otto’s communications with TMZ and Burke the morning after the wedding that he did have an interest in entering the market upon realizing the value of his work," states the order. "The creator of a work should not be precluded from future profits should they lack the marketing prowess to capitalize on their work at the time of creation. Otto’s status as an amateur photographer with an iPhone does not limit his right to engage in sales of his work."
Later the judge goes on to caution that a fair use analysis is context dependent with emphasis on the facts at play. Woods aims to set some minds at ease by offering the following disclaimer: "It is not unreasonable to think that the use could be considered fair in another matter involving a news publisher’s incorporation of a personal photograph."