Court Declares Newscast's Use Of Freelance Photo Is Not Fair Use

 

WASHINGTON, DC (July 18, 2007) - A federal district court in Massachusetts last month issued a decision highlighting the need for news organizations to be cautious when using freelance photographs in their broadcasts or publications, attorneys at Covington & Burling advised journalists. In the decision of Fitzgerald v. CBS Broadcasting, Inc., in the United States District Court for the District of Massachusetts, the court held that the use of a freelance photograph in two television stations’ newscasts was not fair use.

Attorneys Steve Weiswasser and Rob Sherman of the Washington, DC, law firm of Covington & Burling wrote a summary and analysis of the court's finding and shared it with journalists, noting that while the Massachusetts decision is not binding on other courts it may represent a trend toward greater protections for photographers in the news context.

Covington & Burling has provided significant pro-bono legal support to the NPPA over the years on issues pertaining to First Amendment rights and copyright.

At issue in this case was a photograph taken by freelance photographer Christopher Fitzgerald of the arrest of Stephen Flemmi. Two CBS-owned stations, WBZ-TV and WSBK-TV, in Boston, took a copy of the photograph from the front page of the Boston Globe and used it in newscasts during 1998. After agreeing in a court settlement not to use the photograph again, the stations broadcast a cropped version in several newscasts during 2004. CBS argued that the inclusion of the photo in its 2004 newscasts fell within the Copyright Act’s fair use exception. The court disagreed.

Although the Copyright Act lists news reporting as a core example of fair use, the Fitzgerald court emphasized that the fact that the photograph was used in news was not the end of the inquiry. Instead, in a departure from the more common practice of considering the news context in which copyrighted material was used to evaluate whether the use was “commercial,” the court found CBS’s use to be commercial based on its finding that newscasts exist, in part, to generate revenue for the station. The court determined that this commerciality weighed against a fair use finding. The court also found that CBS’s use of a news photo in a newscast (as distinguished from, for example, airing a fashion photograph in news because the subject of the photo has become newsworthy) counseled against fair use. Finally, the court emphasized that CBS used nearly the entire photograph in its news, and that, despite the cropping in 2004, CBS broadcast “the ‘heart’ of the material.”

While the unauthorized use made Flemmi more popular and therefore could have increased demand for Fitzgerald’s photos, the court found most persuasive Fitzgerald’s argument that CBS’s use undermined any commercial market for the photos. As the court observed, “[t]here is no significant demand for 8x10 glossies of Flemmi sold directly to the public.” As a result, the court held that “a finding of fair use would destroy the expected market for Fitzgerald’s [news] photographs. . . .”

Despite its overall finding that fair use did not apply, the Fitzgerald court held that news photographs are factual, and not creative, for purposes of copyright law. Because so-called “creative works” receive greater copyright protection, this finding makes it more likely that a particular unauthorized use could be considered fair use.

A court’s determination of fair use is highly fact-specific, Weiswasser and Sherman concluded, and the Fitzgerald decision is not binding on other courts that might consider a similar question. However, the two lawyers believe that the decision reflects a trend towards greater rights for news photographers, and advise news organizations to exercise greater care when considering the use of such photographs.

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