Last summer, photo-journalist, Bill Swersey, took a picture of
a college student who was working as a vendor a Fenway Park. The vendor
apparently delighted some Red Sox fans with his sales antics. Bill Swersey
photographed the young lad while he was balancing several cups of Coca-Cola
on his head. The photograph was published with permission on the web site
of The Discovery Channel as part of its Eye on America photo series.
The web site contained warning that all photographs on the web site were
copyrighted and could not be reproduced without permission. The web site
also contained explicit instructions as to how one could acquire the rights
to use the images. There were more warnings on the web site that the images
were copyrighted than normally appear in magazines and newspapers.
Sometime in August 1997, the Red Sox decided to fire the vendor because
of some complaints that had been made about his sales tactics. The Boston
HERALD decided to do a human interest story about the vendor and his plight.
The HERALD had one of its photographers photograph the vendor holding his
last paycheck while he was outside Fenway Park. Despite the warnings on
the Discovery Channel web site, the HERALD also used Bill Swerseyís
photograph. The photograph was downloaded straight from the Discovery Channel
web site without permission form either Swersey or the Discovery Channel.
When the HERALD refused to acknowledge any wrong-doing, Swersey was forced
to file one of the first lawsuits for copyright infringement for taking
a photograph off the internet and publishing it without permission. (See,
United States District Court, District of Massachusetts, Swersey v. Boston
HERALD, Inc., Civil Action No. 97-12732). The action was settled shortly
after it was filed in court.
Prior to settlement, the HERALD claimed that its use of the Swersey photograph
was permitted under the copyright doctrine of ìfair useî. Wen
a use is ìfairî, there is no infringement of the copyright.
The Copyright Act gives certain exclusive rights to the owners of copyrighted
works ñ the right to reproduce the work, to prepare derivative copies
of the work, and to distribute copies of the work. The Copyright Act acknowledges
that there are also times when copyrighted works can be used without permission.
This is the doctrine of fair use.
Fair use includes uses of copyrighted works for educational purposes, criticism,
comment, research and news reporting. The factors to be considered in determining
whether or not a use is fair or not, include the purpose and character of
the use, the nature of the work, the amount of the work used in relation
to the whole and the effect that the use has on the market value of the
work.
The HERALD claimed that since the Discovery web site address was used in
the story, and since the HERALD used the photograph for editorial news reporting
purposes, its use was fair use.
The Discovery web site contained a clear explanation of how one could acquire
proper licensing rights for the Swersey photograph. Also, Swersey was denied
credit and Swerseyís copyright by using the photograph without permission?
The answer is yes.
Could the HERALD have used the image without infringing Swerseyís
copyright? The answer is probably, yes. For example, if the HERALD photographed
the vendor looking at his picture on the Discovery web sit, there may have
been fair use. Also, if the HERALD photographed the vendor while he was
looking at a print-out of the web site page, there may have been fair use.
Unfortunately, the HERALD closely cropped the image and made it appear that
the photograph was taken by a newspaper staff photographer. Under these
circumstances, it is hard to claim fair use and the HERALD was forced to
pay for its wrongful conduct.
It makes no difference that the HERALD took the photograph off the internet.
If the image had been taken out of context from a magazine instead of the
internet, there would still have been an infringement. Same old problem,
just different technology.