David Shields recently published War Is Beautiful: The New York Times Pictorial Guide to the Glamour of Armed Conflict. The argument of the book is that the images chosen by the Times to decorate its front pages glamorize and glorify war. Agree or not, it is at least an argument, and Shields even licensed the full-size pictures in the book from the Times. However, the endpapers of the book as published show thumbnail images of the front pages of the editions from which the full-size photos come, and the publisher didn’t license the front pages. The Times has, quite unwisely, sued over this textbook (coffee-table book?) fair use.
|Endpapers to War is Beautiful|
Let’s review: Factor one, purpose of the use: images contextualizing the main argument of the book, which involves the overall aim of the Times, not just the photos in isolation but their presentation by the paper. That’s classic historicization and commentary: transformative use under Dorling Kindersley. Nature of the work: already published, favoring fair use; news photos and news stories, even if creative, are highly factual, though that doesn’t matter much in transformativeness cases. Amount taken: The Times apparently claims a copyright in the layout of the front page, but really the work would have to be that day’s print edition, meaning that the book reproduces a fraction of the work, although qualitatively perhaps more important than an average page. But the real kicker, of course, is size. Much more than in Dorling Kindersley, where you could at least read most of the text in the images, there’s no way anyone could read the chunks of news stories at issue here. Size cuts decisively in favor of fair use. Market effect: the Times isn’t entitled to any market for transformative uses, even if there were some market for unreadable thumbnails.
It’s hard not to look at this lawsuit as the reaction of a paper embarrassed at having licensed photos for what turned out to be a work of harsh criticism. Whether that criticism is justified or not (and whether licenses were even required, or sought only to avoid a legal battle), the once-Grey Lady looks unappealingly thin-skinned. I would point out that fees are available to prevailing copyright defendants, and no matter what happens in Kirtsaeng the law is clear enough here that this is a good case for such an award.
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