Fair Use and Photos of 9-11, McClatchey v. AP

June 15, 2007

Fair Use and Photos of 9-11, McClatchey v. AP

In a decision dated June 4, 2007 the United States District Court for the Western District of Pennsylvania considered pretrial arguments for the McClatchey v. AP case.

On September 11, 2001, Valencia McClatchey took a photograph of the mushroom cloud caused by the crash of United Fight 93. She obtained copyright of the image and title it "End of Serenity." While doing a story about McClatchey a year later, Associated Press reporter, Charles Sheehan, took a photo of a copy of "End of Serenity" which included the title and copyright notice. Associated Press then allegedly cropped the title and copyright notice out of the image and distributed the unattributed image though their PhotoStream service to various AP members.

In August of 2003, McClatchey learned her photo was being used on AOL's homepage without permission and that AOL had obtained the image from AP. McClatchey brought suit against AP for direct copyright infringement, contributory infringement, vicarious infringement, and for removing and distributing false copyright information in violation of the DMCA.

This hearing made a decision regarding six pretrial motions: (1) motion in limine to exclude certain documents and testimony regarding AOL by AP; (2) motion in limine to limit plaintiff to one statutory damage award under the copyright act by AP; (3) motion in limine to limit plaintiff to two statutory damage awards under the DMCA by AP; (4) motion in limine to exclude certain documents and testimony regarding iPhotoart by AP; (5) first motion in limine to preclude Eric N. Lieberman from testifying at trial by Valencia M. McClatchey; and (6) motion in limine to exclude certain documents and testimony regarding alleged third-party infringements by AP.

The first motion, the motion to exclude certain documents and testimony regarding AOL by AP, is the only motion that touches on fair use issues. AP wanted the court to exclude documents and testimony related to the publication of McClatchey's image by AOL. AP claimed the AOL had a "separate and independent right to make fair use of the photograph," which would make AOL's use noninfringing, making AP not liable for contributory or vicarious infringement. McClatchey claimed that AOL's use was not "fair use" and was instead a direct infringement, and that evidence of that infringement is relevant for proving "AP distributed the photograph to its subscribers." The Court found that a fair use analysis of AOL's use would be relevant for the case and denied the motion to exclude.

The Court granted the second motion, the motion to limit plaintiff to one statutory damage award under the copyright act by AP, and imposed a limit on AP's statutory damages to one award, following the statute on damages in 17 U.S.C. § 504©(1).

The Court granted the third motion, the motion to limit plaintiff to two statutory damage awards under the DMCA, reasoning that under 17 U.S.C. § 1203©(1), the term "each violation" refers to "each violative act performed by Defendant." Therefore AP could only be liable for the one time it distributed McMclatchey's imagine, even though it was distributed to multiple parties.

The Court denied the fourth motion, the motion to exclude certain documents and testimony regarding iPhotoArt by AP, reasoning that the evidence about the price of other historic images solid by iPhotoArt was a good benchmark for the value of McClatchey's image.

The Court denied the fifth motion, the motion to preclude Eric N. Lieberman from testifying at trial by McClatchey, reasoning that the factors laid out in Quinn v. Consolidated Freightways Corp. of Delaware, 283 F.3d 572, 577 (3d Cir. 2002) (importance of the testimony, prejudice or surprise in facto to opposing party, ability of that party to cure the prejudice, disruption of trial and bad faith of willfulness), supported AP's argument to deny the motion.

The Court granted the sixth motion, the motion to exclude alleged third-party infringement, since McClatchey did not have any evidence of infringement by the third parties AP sought to exclude.

McClatchey v. AP, 2007 U.S. Dist. LEXIS 40416, was decided on June 4, 2007. The opinion was written by Judge Terrence F. McVerry. The trial is scheduled for June 25, 2007, and should provide some interesting fair use analysis.

For only $20 you can order your very own copy of End of Serenity in 8.5 X 11 format here.

By Matthew Sag (Dan Rothenberg contributed to this post)

http://thefairuseblog.typepad.com/the_fair_use_blog/2007/06/fair_use_and_ph.html