Kirsch’s Publishing Law Update “Fair Use” in A

January 2001
by Jonathan Kirsch

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Jonathan KirschJonathan Kirsch, a publishing attorney based in Los Angeles, is general counsel of the Independent Book Publishers Association and a recipient of its Benjamin Franklin Award for excellence in publishing.


The so-called “Fair Use Doctrine” under the Copyright Act permits the use of copyrighted material without the permission of the copyright owner, but only under certain narrow circumstances. Because the doctrine generally arises as a defense to a claim of copyright infringement, it is impossible to know in advance whether or not any given use of copyrighted material is fair use—a publisher who relies on the Fair Use Doctrine and is sued for infringement will find out if he or she guessed right only after a trial on the merits!

For that reason, it is especially illuminating to consider how the Fair Use Doctrine has been applied in lawsuits that actually go to trial. And one recent case, Baraban v. Time Warner, is especially encouraging to publishers who choose to reproduce a copyrighted work under the Fair Use Doctrine, at least when they do so for the classic fair-use purposes of “commentary and criticism.”

The plaintiff in the case is Joe Baraban, a professional photographer whose work was used in an advertisement by the United States Council for Energy Awareness to promote nuclear power. The defendant is Time Warner, publisher of the book Trends 2000 by Gerald Celente. In Trends 2000, the Council’s advertisement was reproduced to illustrate a chapter on the perils of nuclear power. The advertisement, seeking to reassure its readers about the safety of nuclear energy, featured an idyllic scene captured by the photographer—a woman and a cow gambolling happily in a field of clover under a bright blue sky dappled with white clouds.

Significantly, the advertisement carried a copyright notice in the name of the US Council for Energy Awareness, and when the publisher tried to contact the advertiser to request permission to reproduce the ad, the publisher discovered that the organization was no longer in existence. So the publisher used the advertisement without formal permission, relying instead on the Fair Use Doctrine. When the book came to the attention of the photographer, he sued for copyright infringement. A federal trial court in New York, however, ruled that the reproduction of the advertisement in Trends 2000 was fair use and granted summary judgment in favor of the publisher.

Whether or not a particular use of copyrighted material is fair use depends on the application of several different tests, none of which is controlling in itself. One of the tests under the Fair Use Doctrine, for example, focuses on the “amount and substantiality” of the copyrighted material that has been used without permission—the use of a small portion of a copyrighted work is more likely to be regarded as fair use than the use of most or all of the same work. Another test is whether the copyrighted material was used in a publication undertaken for “commercial” or “nonprofit educational” purposes—a finding of fair use is more likely when no profit motive is involved.

Under these tests, we might have expected the publisher to fare badly in the Baraban lawsuit. After all, the publisher reproduced the copyrighted advertisement in its entirety and did so in a trade book that was sold for profit. But the Court gave the greatest weight to yet another fair-use factor, that is, the “purpose and character” of the book in which the copyrighted advertisement was reproduced. The Fair Use Doctrine strongly favors “criticism, comment, news reporting, teaching, scholarship, or research”—and the Court was persuaded that the advertisement was reproduced in Trends 2000 for the purpose of illustrating and then commenting upon the ways in which nuclear power is promoted by its advocates.

“The reproduction in a book of a photograph used in a political advertisement,” the Court concluded, “was a fair use because it constituted commentary on the message of the advertisement.”

It’s Electronic – But Is It Publishing?

Strictly speaking, online publishing is not really publishing at all, at least according to the procedures of the Copyright Office and the Patent and Trademark Office.

Publication, according to the classical legal definition, means the making and distribution of copies of a work. If, however, a work is merely made available over the Internet for display on a computer monitor, then no copy has been made and distributed, and as a technical matter, no publication has taken place.

What are the practical consequences of these distinctions? The Copyright Office regards a work of authorship that is made available only online and not in any other medium as unpublished, and it must be registered as an unpublished work. Similarly, the Patent and Trademark Office regards a book or periodical that is made available only online as a service rather than product, and thus the logo or other mark used by the publisher of an online periodical is registered as a service mark rather than a trademark.

Copyright and trademark protection is still available to publishers who “publish” online, but care must be taken to use the proper terminology, classifications, and procedures in order to register copyrights and trademarks in such work.

A Victory for Vigilant Photographers

Copyright registration of photographs will be cheaper, easier, and faster under a new procedure proposed by the Copyright Office.

Under the current procedure, a separate application is required for registration of each separately published photograph, a rule that makes it so expensive and burdensome to register photographs in quantity that some photographers simply do not bother to register until they are prepared to make a claim of copyright infringement.

Under the proposed new procedure (if and when formally adopted by the Copyright Office), all photographs taken by a single photographer and published in the same calendar year could be registered under a single group registration.

Since photographers are already especially vigilant about the misuse of their work—as some publishers, including Time Warner, have learned from firsthand experience!—the new procedure will encourage the registration of photographs and thus strengthen the legal remedies that an aggrieved photographer can bring to bear against a publisher for the alleged misuse of a photograph.

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