The Corpus Christi Caller-Times reports (thanks to reader Chris in Austin for the pointer):
A television advertisement for Democrat John Kerry’s presidential campaign appears to have violated copyright laws by broadcasting several photos from the Caller-Times book “South Texas Heroes.” . . . These veterans or their relatives say they did not give permission to use their photos, nor did the Caller-Times. . . .
The advertisement targets Hispanic voters in six states, and features photos of 16 Hispanic veterans, 15 of which were featured in “South Texas Heroes.” . . .
The Kerry campaign’s director of Hispanic media, Fabiola Rodriguez-Ciampoli, said late Wednesday that the ad may be pulled off the air after she learned that some people did not give permission to run the photos. It’s also possible a different version of the ad may run with photos of people who gave permission to Gutierrez and the campaign. . . .
[Ad producer Armando] Gutierrez said “South Texas Heroes” is not the source of the photos used in the commercial, which started airing Friday. . . .
Gutierrez said he is related to most of the people in the commercial, including five Barrera brothers. The other photos were from friends of the family, he said. That’s why he didn’t think it was necessary to have written permission, he said. . . .
Gutierrez said if there is a problem with obtaining rights to the photographs, it is his mistake and not that of the Kerry campaign. . . .
Let’s assume — and the story suggests that this is likely so — that indeed Gutierrez copied some of the photos from the Caller-Times book without getting anyone’s permission. Would this be a copyright infringement?
Potentially, yes, since the photos are copyrighted works, with the copyright being owned by the original photographers (or their heirs), though possibly with the photographed people having an implied license to authorize others to republish the photos. (The copyright might be owned by the photographed people, but I doubt it — that would probably require the photographed to have conveyed the copyright in writing, which generally isn’t done.)
Still, I think the Kerry campaign would have a pretty strong fair use defense here.
1. It’s using the photographs for self-interested purposes, it’s true, but not for commercial ones — that cuts in favor of fair use.
2. The photos are factual works, with some creative component (lighting, posing, and the like), but relatively little. That also cuts in favor of fair use.
3. The entire photo is used; that cuts against fair use, but probably not by much, since that’s the only really practical use of such a photo.
4. Such uses probably have virtually no effect on the income of the copyright owners — the photographers and the photographers’ heirs. The owners would be extremely hard to track down, 50 years after the photos were taken; often people might not remember who the photographer even was. They would thus be very unlikely to get any money from licensing the use of such photos. As a result, Gutierrez’s actions would not have in practice materially affected the market for their works.
If the photos were taken by family members, then they might be easaier to track down; but even there, you’d have to know exactly who took the photograph. Moreover, since the commercial value of the license to use the photo would likely be fairly low (not nil, but fairly low), this effect-on-copyright-owner’s-income factor would probably not weigh heavily against fair use, especially since it would often be so hard to figure out for sure exactly who took the photograph, and whom the rights descended to at the photographers’ death, if the photographer is dead. In the fair use effect-on-market factor, such practicalities do make a difference.
Ah, you say, but what about the objections of the photographed people and their families, as subjects rather than as photographers? Well, copyright law provides no protection to the subjects as subjects (and neither do other legal rules, for reasons given here). Copyright law protects the rights of the copyright owner, or, more precisely, the owner of exclusive rights under a copyright. And, especially for published works, the fair use analysis focuses on the economic value of the work, and not on the subject’s (or even the photographer’s) moral or political objections to the use. The subjects and their families might have the right to license the uses, under the theory that the photographer gave them an implied nonexclusive license to do so. But they have no right to sue over such uses, because they only have the nonexclusive right to use the photo and maybe the right to license it; they have no right to exclude others from using it.
So my sense of the legal issue: This is probably not a copyright infringement, because it’s a fair use. Again, though, it’s possible that the Kerry campaign may feel political pressure to stop using those photos (see the story for more details on some of the family members’ objections).
Technical note: Because the photos were taken before the Copyright Act of 1976 was in effect, but were published afterwards, they would be essentially governed by the 1976 Act. See secs. 303 & 302, for instance, which show that the photographs are still protected by copyright; likewise, the photos didn’t have to have a copyright notice on them when they were first taken, because they weren’t published then, and they didn’t have to have a copyright notice on them when they were published, because the publication happened in 2003, long after the copyright notice requirement was eliminated.
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