Hustler’s loss in copyright case: revealing look at fair use

Friday, August 17, 2012

A 6th U.S. Circuit Court of Appeals decision yesterday in favor of a TV news anchor photographed in the nude offers a revealing analysis of copyright and fair use.

Ohio newscaster Catherine Bosley participated in a Key West, Fla., wet T-shirt contest in 2003. Bosley overachieved and concluded her performance in the nude. A photographer took shots of her and his posting of them on his website eventually led to her dismissal from a television station in Youngstown. In an effort to limit distribution of the photos, Bosley bought them from the photographer.

That made Bosley the owner of images she wanted no one to see. In 2006, however, Hustler magazine pulled one of the photos from the Internet and included it in a feature called “Hot News Babes,” a series highlighting attractive women working in TV news. Hustler had no legal right to the image and didn’t pay for it. The feature led to a lawsuit by Bosley against Hustler and a jury award of $135,000.

On appeal, Hustler argued that it had a right to publish the image under the fair-use doctrine. This is a legal exemption to copyright permitting the use of content owned by others for a narrow set of purposes with a public benefit. It’s important because it permits reporting and commentary about copyrighted material.

The appeals court examined four key factors in any fair-use defense:

1. The purpose and nature of the use, particularly whether it’s for commercial or nonprofit educational purposes.
2. The nature of the copyrighted material.
3. How much of the copyrighted material was used.
4. The effect of the use on the market for the original copyrighted work.

Much of this analysis was easy. “Hot News Babes” was clearly commercial and non-educational material, and Hustler used an entire photograph, cropping it only slightly. But then came the interesting part. A plaintiff is likely to prevail if he or she can establish that the use of the copyrighted material damaged the market value of the material. If someone steals a song, for example, then people are less likely to pay for the original. The irony in this case is that Bosley had to argue that the market value of the nude photo had been damaged, when in fact the last thing in the world she wants to do was to market it.

The court nonetheless concluded that the market value of the photo — which had been in great demand on the Internet — was in fact undermined by Hustler’s use of it. Whether the plaintiff ever intended to market the photo was irrelevant, the court concluded.

“A copyright owner is not required to show that actual harm has come to her, but must show merely a ‘potential’ effect on the market for the copyrighted material,” Judge Eric Clay wrote for the court. The court upheld the jury verdict.

Hustler contended that its “Hot News Babes” feature was a non-commercial news item, but the court’s decision wasn’t exactly a loss for a free press. The court’s opinion does nothing to undercut the vibrancy of fair-use principles for news media or educators. It is, however, a significant setback for pornographers.

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