U.S. Court of Appeals Decides “Fair Use” of Photographs

The United States Court of Appeals for the Eleventh Circuit (Georgia, Florida and Alabama) decided a case on September 17 involving the “fair use” of a photograph obtained over the internet. Katz v. Google, 2015 U. S. Appeal LEXIS 16546 (11th Cir. 2015).

Raanan Katz is a minority owner of the Miami Heat basketball team and a commercial real estate tycoon. On a visit to Israel, a newspaper there took a candid photograph of Katz that showed his face contorted and his tongue sticking out.

A tenant in one of Katz’s shopping centers started a blog campaign critical of Katz’s business practices. She found the unflattering photograph through a Google search, and started including it as a part of her blogs criticizing Mr. Katz.

Mr. Katz contacted the newspaper in Israel and purchased the copyright to the photograph, and sued the tenant for copyright infringement for posting the photograph without permission. She defended on the basis of fair use.

The Court of Appeals held that the tenant’s use of the photograph was in fact “fair use” and upheld the dismissal of Katz’s copyright claims.

The facts supporting fair use were these:

• The use of the photograph in the blogs was primarily educational rather than commercial – a part of criticism and commentary.
• The use of the photograph was transformative in that it was in conjunction with a new meaning, message or expression compared to its original use. The use by the tenant in the blogs was for purposes of ridicule and satire.
• The original use and publication of the photograph occurred prior to the tenant’s posting on the blogs.
• While photographs are entitled to copyright protection, this photograph was primarily a factual work and not one that involved subjective and artistic judgment.
• The use of the photograph did not materially impact the market that Katz would have had for the photograph in question.

This opinion by the Eleventh Circuit supports the practice of blogs, newspapers and publications that locate and use photographs of individuals for purposes of illustrating news and commentary. For example, while Herschel Walker has the exclusive right to promote and market his name, image and likeness, and while a photographer of a picture of Walker would hold a copyright to the photograph, a blog or newspaper could as “fair use” publish a photograph of Walker in conjunction with a news article or commentary concerning Mr. Walker.

But, fair use of a photograph in conjunction with commentary, satire or reporting does not extend to an unauthorized commercial use for advertising, marketing or merchandising.