The New York Times Says Hello to Fair Use

by Koka Tarini Siddhartha

The New York Times was recently at loggerheads with a publisher, powerHouse Books, for the use of the newspaper’s images in its book, War is Beautiful. While the image on the book’s cover had been licensed by the publisher, the issue at hand was regarding some of the images found inside the book.

What was the case all about?

The main issue revolved around the unlicensed use of sixty-four thumbnail images of previous New York Times covers published in the book War Is Beautiful. The publisher had used these images partly to enhance the book’s decorative element and to capture the reader’s attention, and partly to depict The Times’ glamourization of wars through its photographs. The New York Times, however, filed a suit against powerHouse Books, claiming that the use of the photographs was blatant copyright infringement, and that powerHouse Books was thus liable to pay damages for the same.

What happened in the end?

powerHouse Books insisted that they had used the photographs as an illustration, and for completely non-commercial purposes, which would in no way affect The New York Times’ business. They further submitted that the use of the images was transformative in nature, and thus protected by the fair use doctrine. NYT’s actions were criticised for having “chilled free expression”, and also for having disregarded the fair use doctrine. Ultimately, the New York Times settled privately with powerHouse Books.

Curious to learn more about the fair use doctrine?

Even if the New York Times had not settled out of court with powerHouse Books, the court in all likelihood would have decided in favour of the defendants, as the use of the images was clearly protected by the federal Copyright Act, 1976, under the fair use provision.

Fair use is a principle which was established so that the public could report, comment on, or criticise copyrighted work without any restrictions. Traditionally, the fair use doctrine gives freedom to any person to use a copyrighted work without the owner’s consent, in a manner that is considered “reasonable”.

The justification for this doctrine is that there is no such thing as a wholly original work — everything is derived from some pre-existing work. You can read more about this doctrine and its application here, especially if you are a writer.

Let’s go back a bit to the evolution of this doctrine…

The fair use doctrine has been in force for several decades in countries such as the United States of America, Israel and Philippines, with the United States being the most successful and extensive enforcer of this doctrine. It is relevant to mention here that this doctrine is to be used as defence rather than as a strategy.

In the US, the fair use doctrine has been provided for under Section 107 of the Copyright Act, and is more commonly referred to as the four factor test, which takes the following into consideration:

  1. Purpose and character of the use
  2. Nature of copyrighted work
  3. Amount and substantiality of the portion use
  4. The effect of the use on the potential market of the copyrighted work

While every case where this doctrine has been enforced has seen the courts evaluate it against the overall result obtained on applying each factor to the facts of the case, there is also another aspect that the courts look into, which is the transformativeness of the use, i.e., to determine if the use is transformative enough to constitute an entirely new work to appeal to a dissimilar market.

The transformativeness of a work is particularly important when it comes to parodies and satire. In a 1994 judgment (Campbell v. Acuff-Rose Music), the court held that the main prerogative of the courts is to examine whether the secondary work adds something new with a different purpose or character, in which the original work has been altered with “new expression, meaning or message.” This was reiterated in several succeeding cases. A prominent case where the court emphasised on the transformativeness of the secondary work was the Koons case.

What is the defence mechanism in India?

In India, the doctrine followed is ‘fair dealing’, which is provided for under Section 52 of the Copyright Act, 1957, and is quite different from the fair use doctrine, although many do confuse them to be the same. Under this doctrine, an exclusive list of exceptions has been provided, pursuant to which no action for copyright infringement can be initiated.

This takes place in a two-stage process. The use must firstly fall within the list of permissible purposes, and must secondly be found as fair. This is a very narrow mechanism and the entire process is quite cumbersome and time-consuming. This doctrine has been criticised by several scholars and jurists as being rigid and restrictive as its scope is limited.

Had a case similar to the one discussed in this post arisen in India, the courts would have in all probability decided in favour of the defendant-publishers, with the use being categorised as a review or criticism, protected under the fair dealing doctrine. More on this doctrine from an older post here.

What the future holds

Although it is simple enough to apply the fair use and fair dealing doctrines in a case like this, it is not the easiest task when more complicated situations crop up. With the enforcement of the fair dealing doctrine, the creative secondary use is more often than not found to be unfair. The application of the fair use doctrine at least gives both parties a chance, for every infringement suit is decided on a case-by-case basis. Both doctrines do have their flaws, but perhaps it is time India moves towards a more proactive and open system of protection that can be availed under the fair use doctrine, or perhaps an entirely new system of protection altogether.

Do share your thoughts in the comments below.

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