Say that a photo, which perfectly illustrates a newsworthy event, was disseminated widely in social media with no indication permission was given, and it was shot by an amateur who doesn’t make a living from licensing photos.  Documentary makers might be strongly tempted to use that photo on a fair use basis.  A recent decision in a New York federal lawsuit, however, counsels otherwise.

The photo in question depicted President Trump, after crashing a wedding at the Trump National Golf Club, standing with the bride.  It was shot by a guest named Jonathan Otto, a banker with an iPhone, and because copyright protection attaches at the moment of creation, it was protected.  He shared it with another guest and within hours it was published on Instagram by a relative of the bride.  By the next day, the image had gone viral, appearing on TMZ, CNN, the Washington Post and the Daily Mail.  Esquire.com used it to illustrate a news article, “President Trump is the Ultimate Wedding Crasher,” giving attribution to the relative’s Instagram account.  Otto brought five suits and settled all but the one with Hearst Communications, publisher of Esquire.com.

While acknowledging that the photo depicted a newsworthy event, the court rejected fair use on two principal grounds.  First, the use did not “transform” the photo’s purpose or add new meaning.  The photographer’s intention was “to document an important memory and newsworthy event,” and so was that of Hearst in its article.  That the photo was “created for personal use and Hearst used it for news” was not a persuasive transformation. Moreover, the photo itself was not discussed in the article, which did “little more than describe the setting of the image.”

Second, notwithstanding that Otto planned to use the photo “for personal, rather than commercial purposes,” publishing the photo without permission “essentially destroy[ed] the primary market for its use.”  Otto had the right to try to sell the photo to media outlets – where there was “indeed a market” — if he decided to do so.

Furthermore, the court observed that the First Amendment confers on the news media no categorical privilege to “poach” photos from social media accounts, even if they substantiate a story’s content.  The use still had to fit within the fair use defense.

The court acknowledged that the outcome might be different in a similar scenario involving use of a personal photo in a story.  But the lesson of the case is that whether or not a copyrightable work has gone viral in social media, or was reproduced numerous times without permission from the copyright owner, documentary makers and news organizations should think twice before counting on the fair use doctrine to defend an unlicensed use.

Otto v. Hearst Communications, Inc., 1:17-cv-04712- GHW-JLC, December 10, 2018.