By Robert B. Barnett Jr., J.D
In addition to the transformative nature of the reuse, the fact that the photograph was not being used for a commercial purpose weighed in favor of a finding of fair use.
A professional photographer’s suit alleging that the Manhattan Institute infringed his copyright when it placed in the commentary section of its website a New York Post article that included the photographer’s photograph of New York Governor Andrew Cuomo was dismissed in its entirety because the Manhattan Institute’s act constituted fair use of the photograph, the federal district court in New York City has ruled. The court concluded from the face of the complaint that the Institute’s use of a cropped and darkened version of the photo was fair because the new use was transformative, the photo was reproduced for noncommercial purposes, it had already been published, and no plausible risk existed to any licensing market (Harbus v. Manhattan Institute for Policy Research, Inc., April 27, 2020, Ramos, E.).
Background. On September 5, 2018, the New York Post published an article about the Tappan Zee Bridge, which used atop the article a photograph of Governor Cuomo standing in front of the bridge with a microphone in his hands. The photo was taken by professional photographer Richard Harbus, and the Post paid Harbus a licensing fee for using the photograph. Because the article was written by an adjunct fellow of the Manhattan Institute for Policy Research, the Institute posted the article in the "Publications: Commentary" section of its website. The same photograph used in the Post article appeared atop the posted article, except that that this photograph was cropped, darkened, and had the title of the article posted across it. The cropped photograph was a middle sliver of the original photograph, showing Governor Cuomo’s chest, hands, and the microphone. A viewer would not be able to tell that the photograph depicted Governor Cuomo or the Tappan Zee Bridge.
The photographer sued the Manhattan Institute, alleging copyright infringement of his photograph. The Institute filed a motion to dismiss on the basis of fair use (17 U.S.C. §107). Although fair use is typically an affirmative defense, the courts are permitted to consider it in a motion to dismiss if the facts needed to establish the four elements of fair use—(1) purpose and character of the use, (2) the nature of the work, (3) the amount of the work used, and (4) effect on potential markets—are clearly evident on the face of the pleadings.
Purpose and character. Noting that this first element is the "heart of the fair use inquiry," the court’s analysis focuses on whether the new work adds something new or merely supersedes the original work. The court agreed with the Manhattan Institute that its use was transformative in the sense that it used the photograph for a purpose different from the one the photographer used. Whereas the photographer used it in a photojournalistic sense to capture what Governor Cuomo looked like when he gave the speech, the Manhattan Institute used it to educate the public about its work and to document the fact that one of its adjunct fellows had an article published in the Post. The Institute’s use, therefore, was to further its research, scholarship, and educational efforts, a category specifically identified in 17 U.S.C. §107 as a permissible use. The fact that the Manhattan Institute added no commentary beyond the article itself did not deprive it of its transformative nature.
Beyond the transformative nature, the court noted that the fact that the photograph was not being used for a commercial purpose weighed in favor of a finding of fair use. In addition, a reading of the complaint revealed that the photographer was not contending that the Manhattan Institute had any nefarious motives in reproducing the photograph. Thus, the absence of bad faith was a third factor weighing in favor of fair use under the first element. For all three of those reasons, the court concluded that the Manhattan Institute had satisfied the first prong of fair use.
Nature of the work. The second factor, involving the nature of the work, also favored a finding of fair use. This photograph was factual and informational rather than creative, although certain creative elements do exist in a news photograph. The fact, however, that it was taken by a professional photographer did not automatically render it creative. It was a piece of photojournalism, which deserves protection but is not typically characterized as creative. In addition, also weighing in favor of fair use was the fact that the photograph had already been published by the New York Post. As a result, the court concluded that the nature of the work did not render it "closer to the core of intended copyright protection than others," where fair use is more difficult to establish.
Portion used. No absolute rules exist for how much of a copyrighted work may be copied and still be considered fair use. This element, however, weighed in favor of a finding of fair use because the Manhattan Institute used a darkened and cropped portion on its website, further obscured by the overlaid text. A viewer could not tell what the picture depicted other than the darkened outline of part of a man’s torso and his hands. To preserve the photograph’s meaning, the Manhattan Institute would have needed to reproduce the full photo. The fact that it did not weighed in favor of fair use. The court also refused to consider the charge that the full photo appeared elsewhere, such as on Facebook. because the complaint only alleged infringement from the website use of the photo.
Market effect. This factor considers the market harm caused by the Manhattan Institute’s actions. The concern is usually whether the action suppresses or destroys the market for the original work. Loss of potential future revenue is, of course, a proper subject for assessing copyright protections. This factor, however, also weighed in favor of a finding of fair use because the Manhattan Institute’s use did not supplant or usurp the licensing market for the photo. Also, the Manhattan Institute is not a media company that would typically consume the photographer’s work. The court characterized as "implausible" the idea that a potential customer would prefer the cropped and darkened photo to the original.
As a result, all four factors were deemed to have weighed in favor of a finding of fair use. The court, therefore, granted the Manhattan Institute’s motion to dismiss and closed the case.
This case is No. 1:19-cv-06124-ER.
Attorneys: James H. Freeman (Liebowitz Law Firm, PLLC) for Richard Harbus. Cynthia S. Arato (Shapiro Arato Bach LLP) for Manhattan Institute For Policy Research, Inc.
Companies: Manhattan Institute for Policy Research, Inc.
MainStory: TopStory Copyright GCNNews NewYorkNews
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