AP:
This undated image obtained from a MySpace webpage shows a woman identified as Ashley Alexandra Dupre.
...
Copyright © 2008 The Associated Press. All rights reserved.
pdn online
Associated Press director of photography Santiago Lyon says AP consulted with its legal department before deciding to use the photos.
"Given the news value of the photographs, we decided that these were images that the public needed to see," Lyon says.
After the jump, I look at the inevitable hypocrisies of mixing this with the AP suing news aggregators and web crawlers...
The Spitzer scandal and resulting publication of myspace photos of Ashley "Kristen" Youmans (Dupre), raises some questions about the application of copyright laws.
I am all for expanding the definition of "fair use", but under the current rules I doubt a court would recognize the "you guys really need to see this picture" exemption, and even if they did, "pictures we didn't feel like paying for of a woman we want to accuse of being a whore", don't really fit into that category.
I am not a lawyer, but let me take a non-authoritative look at Fair Use under the Copyright Act:
Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Let's check off these boxes...
- The AP and other outlets were making commercial use of the images. A hot woman caught in a political sex scandal sells papers, and the media outlets have clearly profited.
- The nature of this work is a particularly compelling example of trespass on rights. The creative content of the photography itself, is coupled with the rights of the woman to the commercial use of her image.
- They used the images in their totality and without alteration. There is no added creative content on the part of the corporations that stole the pictures. Often, the stories themselves that accompanied the images (from many outlets, not just the AP) offered no new content, and were created entirely on previously published information, and content from her myspace profile.
- There will be no bidding war for these photos now. The woman has been pursuing an entertainment career that will now be clouded and guided by the scandal. Her financial options are now likely to be dominated by the sale of her image, and the publication of these photos without compensation is a huge infringement. Any argument about how publicity impacts her financial viability ignores the obvious fact that the publicity would have been there regardless of the sale or the theft of these images.
So, to my eyes, we have a clear case of infringement, but does the AP normally hold a very open view of fair use?
Of course not:
The Associated Press is suing news-aggregation site Moreover and its parent company VeriSign for copyright infringement for snippeting and linking to its news. This harkens back to the early days of the Internet when news aggregators were routinely legally hassled for linking.
They were suing over the use of "their" headlines in web links!
Defendants are also trespassing on AP's chattel by using search robots or "crawlers" to retrieve information form AP's computer servers in order to display, archive, cache, store, and/or distribute AP's proprietary works.
They were suing over the existence of webcrawlers!
Defendants vigorously stress the "hot news" aspect of their services. And, as Moreover pronounces in its website-based marketing materials: "For current awareness, news aggregation is far superior to traditional syndication. Why? Increasingly, critical business information appears first, and more often exclusively, on the open Internet. Because Moreover aggregates news already available on the Web, there are no hidden content access charges like those associated with syndicated news services. The result is a fixed, predictable cost structure that delivers a rapid return on investment.
They stress that "hot news" is the key to their business model, and having information first is a vital driver of profit. When they steal the image, they destroy the "hot news" value. They better be careful of the arguments they make. The precedents could come back to bite them... if the law was applied equally.
But if this is not true:
All material ("Materials") displayed or transmitted on this site, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics are owned by AP or its members, and are protected by United States and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
And if the Copyright Act states:
Fraudulent Copyright Notice. - Any person who, with
fraudulent intent, places on any article a notice of copyright or
words of the same purport that such person knows to be false, or
who, with fraudulent intent, publicly distributes or imports for
public distribution any article bearing such notice or words that
such person knows to be false...
Why would any court entertain their claims under the Act that they are violating? Their actions of infringement, and then compounding it with a knowingly false claim of ownership, should be cast as the fraud that it is.