In the recent decision of Schwartzwald v. Oath, the court in the Southern District of New York found that the reproduction of a professional photographer’s photo of actor Jon Hamm in a Huffington Post article was fair use. Schwartzwald is a professional photographer who licenses his images to the media. According to Schwartzwald, he took the picture of Hamm to demonstrate what the actor looks like while allegedly not wearing underwear. The picture was then subsequently used by the Huffington Post in an article entitled 25 Things You Wish You Hadn’t Learned in 2013 and Must Forget in 2014. The Huffington Post altered the original photograph by cropping it and adding a black box with “Image Loading” in white print over the (*cough*) anatomy in question that allegedly allows one to determine whether Hamm is wearing underwear or not. Schwartzwald sued the owner of Huffington Post, Oath, Inc., for copyright infringement. In return, Oath claimed “fair use,” a defense against a claim of infringement and filed a motion to dismiss.
Section 107 of the Copyright Act lays out the four factors the courts must evaluate to determine fair use:
(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 court noted that “[t]he ultimate test of fair use…is whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.”
The application of fair use is a balancing test. No two cases are the same because of the facts involved, which makes a sweeping explanation of fair use impossible. The fair use defense is probably as far removed from “bright line law” as possible. The hardest ones are when the four factors are split evenly between the parties. But here, the court found in favor of Oath on all four factors and granted the motion to dismiss.The opinion can be read here.