Category: Art

Sen. Hawley Merchandising That Photo Ain’t Fair Use

Mickey Osterreicher, general counsel for National Press Photographers Association (NPPA), wrote an open letter to Senator Josh Hawley of Missouri telling him to stop using a photograph on tee shirts and other campaign merchandise. You know the photo. The one of Hawley raising a fist of solidarity to a mob of knuckle-dragging seditionists shortly before many of them stormed the Capitol on January 6th. Captured by Politico staff photographer Francis Chung, Hawley’s merch reproduces the image with the senator cut out of the background, posterized in gray tones, and accompanied by the slogan “SHOW-ME STRONG!” (Yikes). Osterreicher’s letter begins…

Stop merchandising a widely published photo taken before the storming of the U.S. Capitol on Jan. 6, 2021, showing you clenching your fist in support of the mob. Stop being part of a long line of celebrities and politicians who think they can misappropriate images and music created or owned by others without permission, credit or compensation.

Professor of law Brian Frye disagrees. In a tweet posted early this week, Frye first assures readers that he is no fan of Hawley but then states that Osterreicher’s complaint is “ridiculously wrong.” He writes …

Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use the copyrighted works in order to criticize them … Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6th rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding father sues to criticize loyalists in the Federalist Papers.

Most of the attorneys I know are reluctant to opine about even hypothetical cases without full knowledge of the facts, but not much more information is needed in this instance for this non-attorney to say that Frye makes at least one assumption that implies an error of fact, which serves as the basis for his multiple errors of law. The argument that Hawley’s merchandise expresses criticism of those of who scorn the senator for his conduct is razor thin in general and beside the point as a fair use consideration.

Any ordinary observer would perceive Hawley’s merch as conveying the same thing the prospective buyers of that merch see in the original photo—a man they revere for showing support for the 1/6 insurrection. That those observers see “hero” while many others see “traitor” has nothing to do with Hawley’s campaign minions adding new expression to the original work such that it would favor a finding of fair use under the first factor analysis for transformativeness. By reproducing the photograph to make and distribute derivative works (i.e., violating three exclusive rights under §106), Hawley has not imbued the image with new meaning within the context of the first prong of the fair use test.

Bizarrely, Frye’s “criticism” rationale would require that Hawley perceive the original photograph as intrinsically conveying “Hawley as traitor” and that the senator’s use of the work intentionally alters the original meaning in order to convey “Hawley as hero and mocking those who criticize him for supporting 1/6.” This is absurd on its face. These opposing perceptions of Hawley are brought by the observers to the image, and Frye is applying an eye-of-the-beholder consideration where it does not belong while inserting the word parody, where it does not apply.

Parody, if it exists at all, must target the work at issue, and not some other subject matter, in order for a use to weigh in favor of fair use. Ditto criticism, commentary, reportage, etc. It is a subtle distinction that confuses a lot of people, though I suspect Frye is expressing his opinion more than revealing any confusion on the matter. As a simple example, if a news organization produces a story about photographer Francis Chung and the moment this photo was taken, then use of the image to illustrate the story would favor a finding of fair use. On the other hand, if the news organization is strictly reporting about Sen. Hawley in general, or his conduct on 1/6, use of the photograph would ordinarily require permission.

Further, Frye misstates the commercial consideration when he uses the word profit as the exclusive interest of the copyright owner. He may wish the exclusive rights of the copyright owner were this narrow, but they are not. A more correct word would be gain. If the party making use of the work gains materially from the use—and seeking career advancement as a politician is a form of gain—any court considering the matter would correctly identify Hawley’s use as commercial, which disfavors a finding of fair use. This would be true even if Hawley’s political operation were giving the merch away for free, which of course, it is not. So, the use is commercial in every sense regardless of “profit.”

Frye compounds these errors of copyright law by implying in his statement that Politico’s enforcement in this instance is being used to stifle Hawley’s speech. He joins other copyright critics in alleging the abuse of copyright law to “shut people up.” And he obviously means it because he doesn’t like Hawley any more than I do. But this is another subtlety often missed or elided about copyright in this context:  copyright rights do not preclude a party from speaking but rather preclude a party from using the owner’s expression to speak on their behalf. Because copyright critics fundamentally reject many foundations of copyright rights, they cannot bring themselves to acknowledge that unlicensed use of works can amount to coerced speech, which is itself an infringement of the speech right.

When you believe that copyright law is inherently a form of censorship, it produces some untenable interpretations of fair use. Just because the First Amendment is an underlying rationale for the fair use doctrine, this does not mean that all protected speech favors a finding of fair use. If this were so, the multi-factor fair use analysis would hardly be necessary since protected speech is almost limitless. Frye et al. may advocate this view, but it is not doctrine and never has been.

The image of Hawley itself is blood boiling. A U.S. Senator saluting a 21st Century legacy of the mob James Madison feared—endorsing a dangerous lie to animate a riot which, if successful, would end the constitutional order of the United States. That Josh Hawley happens to be a graduate of Yale Law School—hallowed ground of the Puritan-to-Federalist origins of the country—adds an extra layer of Where the fuck are we? to his emblazoning that image of himself onto cammo pattern beer koozies. I cannot reconcile all that in this post, but at least I can argue with confidence that Hawley’s merch sure as hell ain’t fair use. 

What Problem Do Those eBook Bills Address Anyway?

In late December, New York Governor Kathy Hochul vetoed the state’s library ebook bill, acknowledging that the law would be preempted by the Copyright Act. In mid-February, a district court in the State of Maryland, responding to a lawsuit filed by the Association of American Publishers (AAP), ordered a preliminary injunction suspending that state’s ebook law, also on preemption grounds. Recognizing which way the wind was blowing, Kyle Courtney of Library Futures Foundation drafted a letter on February 1 to the House Committee on Corporations of the Rhode Island State legislature proposing amendment to that state’s bill, writing:

…we are advising, based on the current landscape involving litigation and vetoes of similar eBooks laws in other states, that you consider friendly amendments below that will effectuate enough changes in H7113 to help avoid running afoul of the challenges documented below with respect to activities in other states.

What follows is a recommendation that Rhode Island remove one paragraph demanding that publishers license to libraries et al., which the footnote describes as the language in direct conflict with federal law. However, the remaining provisions of the bill still invite a preemption challenge because they presume to dictate terms and pricing models to publishers in conflict with the principle that copyright protects the author/owner’s right to decide the manner in which a work is made available. Hence, the provisions that would remain in the RI bill, as well as nearly identical bills in five other states, may still be construed as unconstitutional state compulsory licenses.

As Courtney’s letter emphasizes, the strategic approach taken by the various lobbying organizations pushing for these bills is to present the subject in the context of state contracts while seeking to remedy a consumer protection problem—namely, the alleged “unconscionability in licensing” practices by the publishers. But so far, the organizations lobbying for these bills have yet to support the accusation that current ebook licensing regimes are extortionate and/or that they are causing a disruption in a library system’s ordinary capacity to serve its community. And that’s to say nothing of presenting a compelling case in every state in which these bills have been introduced.

It is no surprise the American Library Association (ALA) et al. have not presented a thorough argument, because it would be a hell of lot of work. To assess whether a given market is underserved (in any context) requires a considerable amount of research and evidence, including counterfactuals, polling, budget analysis, etc. In this instance, it would be a rather large data-science project to manage and model all the relevant inputs, like overall reading trends, library-use trends, preferences for digital vs. physical materials, and cultural and economic data, to determine whether, and where, the ebook borrowing market is underserved and conclude that the licensing models are the cause.

Instead of doing any of that homework, what associations like LFF and the ALA have done instead is to compare the consumer price of an ebook purchase (e.g., $18) to a library price of an ebook license (e.g., $55 for 2 years), then cry foul and draft legislation to resolve this apparent injustice. But if state lawmakers are going to accuse the publishers of unfair practices to justify a law that flies in the face of the Copyright Act, it should demand more evidence than these two numbers alone. Or if state lawmakers are going to elide all complexity in favor of blunt metrics, then why not simply recognize that three times the price to make an ebook available to fifty times the readers hardly sounds like extortion by any reasonable definition?

The Mid-Hudson Library System

Although I certainly do not have the resources or data-science chops to do the kind of research mentioned above, I did a little digging into the Mid-Hudson Library System (MHLS), which serves my home region, just to see what I could learn.

One of 23 systems in New York State, MHLS comprises 76 small-town and public-school libraries in five counties with a total population of more than 686,000 (~ 258,000 households) earning a median income of about $76,000/year. The 2021 budget for the library system was just under $4 million, a little more than half of which comes from statewide and local taxpayers. In 2021, MHLS spent about $90,000 (2.25% of its budget) on digital lending materials, through a few different marketplaces, and presumably using more than one licensing model.

For example, OverDrive, one of the major marketplace platforms where librarians license digital materials, makes ebooks available under three different licensing models. Through Simultaneous Access, certain publishers offer package deals for multiple titles up to a certain number of loans. In the One Customer One Use model, presumably for back catalog or less popular books, the licenses never expire. And the model most often used by the major publishers for the most popular books is Metered Lending, which offers one or two-year licenses and/or limits the number of loans per license.

In 2021, MHLS ebook circulation was ~ 314,000, and the first three months of 2022 are tracking toward a similar total. Even at the unrealistic frequency of one book per unique patron, that would be less than 1/3 of the total population in the system, which likely says more about demand than it does about supply. In fact, at the national level, although ebooks and audiobooks continue to occupy a greater percentage of a library’s collection, print book borrowing is still 518.92% higher than ebook borrowing as of 2019.

Looking at the catalog, it appears that MHLS offers about 10,000 ebooks (70% fiction/30% nonfiction), presumably under more than one licensing model. But even if all 10,000 were licensed under Metered Lending at a rate of $55 for two years, this amounts to a cost of about $1.07/year per household in the system. Alternatively, we can estimate that a two-year license of $55, at a maximum rate of one loan every two weeks ($55 / 52 readers), is a Cost Per Loan (CPL) of about $1.06.

So, the numbers available do not seem to justify even a hypothesis that ebook licensing is unduly burdensome or is resulting in underserving the MHLS community. And the overall demand nationwide for borrowed ebooks hardly justifies the rhetoric of the lobbyists, who would have us believe that a literature-starved public is suffering on the libraries’ virtual steps at the mercy of the big publishers. When an expenditure is just over two percent of the operating budget, one must step back and look more holistically at the question presented.

Collections Are a Fraction of a Library’s Expense

The data collected in the Institute of Museum and Public Services (IMLS) Public Library Survey reveals that libraries’ costs are increasing for personnel and general operating expenses while costs are trending downward for collection materials—especially the cost of ebooks and audiobooks. Noting that most libraries spend an average 10% of their annual budgets on their collections overall, an article in Wordsrated summarizing the IMLS Survey states, “The drop in price per item is due to library collections becoming increasingly digital. This is because the price per digital item has declined significantly. All while the average cost per book increased 10% since 2003.”

The statistical trends in the IMLS Survey suggest that libraries are going through a lot of transition these days—as collections become more digital, as physical spaces are adapted to provide more programs and services, and as overall reading and borrowing habits continue to shift in the market. Change in any system presents both opportunities and challenges, and it is a safe bet that not every local library will, or can, adapt in the same way. But if the data show that ebooks are, as of 2019, “the cheapest material in a library’s collection,” then why on Earth is this the moment to lobby for these ebook bills in the states?

The answer to that cannot be, “Well, if the prices were even lower, we could do more.” Yeah. That’s how everything in life works. But for one thing, as much as publishers and authors care quite a bit about library patrons, it is not incumbent upon them to outright subsidize the libraries as they navigate the changing landscape—let alone by mandating that the publishers remain bound by old models so that libraries can adapt to new ones. That’s not a symbiotic relationship.

Looking forward, neither the libraries nor the publishers can say what the trends will be in five or ten years, but the libraries should be cautious about putting too many eggs in the ebooks basket. What happens to the relevance of the seventy or so local libraries in MHLS if the system plays an outsized role as a conduit for ebook lending? Don’t at least some taxpayers or prospective donors in each town begin to wonder why they need to keep paying the librarians and maintaining the buildings? Perhaps the local librarians should look at the data and ask whether ALA, LFF et al are doing them any favors.

Of course, knowing the track records of the people behind these ebook bills, it is fair to doubt that they are trying to solve a problem at all but are instead pursuing a broad, anti-copyright agenda. The tone of Courtney’s letter, for instance, makes clear that he (and his colleagues) object to the legal doctrines on which the NY and MD bills were opposed and that his recommendations to RI are a begrudging pivot in strategy to achieve the same ends by a slightly amended rationale.

But to oblige any copyright owner to make a work available under terms mandated by state law invites substantial conflict with federal law and the authority of Congress alone to amend that law. Consequently, no state legislature should embark on such an adventure without a compelling and thorough analysis of the problem allegedly being solved. And so far, the lobbyists for these ebook bills have presented little more than a melodrama barely worth reading at any price.

A Response to Snoop Dogg About Celebrity Photos

Not that I have any delusions about the reach of this blog, but for what it’s worth, here’s a pro-tip for celebrities everywhere about sharing photographs of yourselves on social media:  if you don’t own the rights in the image, don’t post it.

This keeps happening. A celebrity posts an image of himself, the photographer who owns the rights in the image sues for copyright infringement; and the celebrity gets an expensive lesson in the difference between publicity rights and copyrights. Most recently, Snoop Dogg, in response to a photographer suing fellow rapper Nas for posting a photo of himself on Instagram, complained, “Photographers shouldn’t own their photographs of celebrities.” In a video shared by PetaPixel, Snoop Dogg sums up his view as follows:

“When you take a picture of a n***a, that picture ain’t yours. That’s a mere likeness-type situation. You’re borrowing my likeness.”

I don’t expect Snoop to know that his opinion has been wrong as a matter of U.S. law since 1884 any more than I expect that he wants to hear me rap. But he put his finger directly on the confusion that persists—namely that the subject of a photograph (famous or otherwise) is not the author/owner of the photograph under copyright law.[1] Likenesses are subjects of publicity rights, which vary from state to state and primarily concerns uses of a likeness to imply that the subject endorses a message or product. Nothing to do with copyright.

Of course, I am not responding to Snoop Dogg because I think he’s about to lead a celebrity revolt to invalidate copyright protection for all photos of famous people (and I am sympathetic to anyone who has to deal with aggressive paparazzi). But I do think the biggest stars in the world should recognize that they are connected to, and beneficiaries of, a copyright ecosystem which includes a vast population of middle-class workers in every field.

Most celebrities are famous and wealthy because the work they produce is protected by copyright law, and while those protections apply (on paper) to all creators great and small, the reality is that most middle-class creators can barely afford to enforce their copyright rights. Photojournalism, whether of celebrities or any other subject, is a job, one mostly paid through licensing fees. When images are posted without permission on platforms like Instagram, this directly cuts into the photographer’s bottom line by diluting the value of the image, thereby, limiting the ability to charge licensing fees throughout the market.

Snoop Dogg and his contemporaries are old enough to remember a world before Instagram and the other multi-billion-dollar social platforms. They probably didn’t know much about copyright back then either, but they didn’t need to. Before social platforms, copyright boundaries were more commonly supported by mutual respect for the idea that, for instance, the photographer owns the rights to his images just like the singer/songwriter owns the rights to his music.

That was before Zuckerberg and Dorsey et al. invented a way for celebrities to promote themselves all day every day. And then, of course, that opportunity became necessity. Today, the celebrity gets to stoke the fire of notoriety at no monetary cost, the social platform makes a fortune from all that activity, and everyone wants to forget that the photographer plays a pivotal role in the mix—often a highly valuable role by capturing something rare.

Sometimes, the celebrity makes the photographer, and sometimes the photographer makes the celebrity. In the aforementioned 1884 Supreme Court decision affirming copyright protection for all photographs, photographer Napoleon Sarony was more famous than the subject in the photograph at issue—a young man who was not yet the Oscar Wilde.

Like rap artists, the best photographers synthesize the world we all see into expressions that say something distinctive beyond the mere facts of the world. It is those expressions which copyright protects, and the reason we use the word ecosystem in copyright advocacy is that we recognize the interdependence among various creators working in different media.

It’s bad enough when naïve teenagers post works without thinking and dilute a creator’s market value. But when it’s done by multimillionaire creators whose careers also depend on the copyright ecosystem, it is especially insulting. If you don’t own it, don’t post it. Or post away and face a lawsuit you deserve to lose.

[1] Notwithstanding a subject hiring a photographer and potentially owning the work under the WMFH doctrine.

Photo by: Cineberg