When nuptials are celebrated at Trump National Golf Club in New Jersey, the newlyweds may be in for a surprise when the owner drops by to provide a photo op for the wedding party. Such an act in 2017 yielded a snapshot of President Trump with bride Kristen Piatowski, a photo that went viral. The photo was thereafter widely used commercially without authorization and precipitated a copyright lawsuit, Otto v. Hearst Communications.
When President Trump appeared at this wedding — the kind of happening that is marketed by the Trump enterprise as a possible fringe benefit of the venue — Jonathan Otto was among the guests who captured the event with his data phone. Otto took the snap for personal, not commercial, reasons.
Otto shared his photograph with only one other wedding guest and did not post it to any social media site. He was therefore surprised to find, the day after the wedding, that his photo had been published in TMZ, CNN, The Washington Post, the Daily Mail and Hearst’s Esquire website, among other sites.
The guest to whom Otto had sent the photo had in turn forwarded the photograph to others, and a relative of the bride posted it to her Instagram account, from whence it was apparently lifted by various news sites. Hearst used the photo in connection with an article, “President Trump is the Ultimate Wedding Crasher.”
None of the uses were authorized, and Otto promptly retained a lawyer to register the copyrights in the photo and assert his interests. In the suit he brought against Hearst, the only significant issue as to liability was fair use. On cross motions for summary judgment, Judge Gregory Woods of the Southern District of New York ruled for the plaintiff. “Stealing a copyrighted photograph to illustrate a news article,” Judge Woods wrote, “without adding new understanding or meaning to the work, does not transform its purpose — regardless of whether that photograph was created for commercial or personal use.”
The court engaged in the standard four-factor analysis of fair use.
The first factor considers the nature and character of the use, and commonly focuses on whether the use is transformative. Using a photo for the precise purpose for which it was created is not transformative, the court observed. The fact that Otto created the work for personal use and that Hearst used it for news did not represent a different purpose. The purpose was the same because the photo was used to illustrate and describe the same event as the story. Unlike an early case in which use of a photograph in a news story was held fair use, Nunez v. Caribbean International News Corporation, the Hearst article was not about the photo. In Nunez, a risqué photograph itself was the subject of a controversy concerning a Miss Puerto Rico Universe.
That issue may not, however, be as clear-cut as the court concluded. The Trump-bride photograph may not have been the subject of a controversy. But, it could be argued, the article was not solely about Trump’s crashing of weddings; it was also about his exploitation of presidential photo ops as a marketing ploy for his clubs. On that theory, the photo itself would have been a subject of the article and not merely serve to illustrate Trumpian party crashing.
The second fair use factor considers the nature of the copyrighted work, particularly whether a work is expressive or creative, as opposed to factual or informational. Cases commonly seem to treat photographs as inherently creative works. But here the court — noting that Otto did not pose the subjects nor control the lighting or background, but simply snapped it — deemed the photo to be on the factual end of the spectrum, and held this factor favored Hearst.
Hearst’s attempted defense on the third factor, the amount of substantiality of the portion of the copyrighted work that was used, was plainly an uphill battle since Hearst used the entirety of the photograph. Hearst correctly pointed out that using the entirety of a work can be reasonable when required by a transformative purpose. Because the court held that the defendant’s purpose was not transformative, however, that factor went against defendant.
The final factor — the effect of the use on the potential market for or value of the copyrighted work — also favored the plaintiff. As soon as Otto realized that the photograph had market value, he sought to realize that value. The fact that he did not originally take the photograph with such intent was irrelevant, the court ruled, writing: “The creator of a work should not be precluded from future profits should they lack the marketing prowess to capitalize on their work at the time of creation. . . . Publishing the Photograph without permission essentially destroys the primary market for its use.”
Three of four factors tilted against fair use in the court’s estimation.
“Allowing a news publisher to poach an image from an individual’s social media account for an article that does little more than describe the setting of the image does not promote ‘the Progress of science and useful Arts,’” which is the constitutional purpose of copyright, the court wrote. Hearst’s use was therefore not fair.
Otto’s lesson: It seems surprising so many media outlets would need to be reminded, but the fact that a photo is posted on social media, has gone viral and is an amateurish effort still does not mean that using the photo without permission is risk-free. Copiers beware!