Tag: Photography

Generative AI’s Analogs to Technological Disruptions of the Past

technological

A common disparagement of copyright advocacy is that it is anti-technology. Despite overwhelming evidence that professional creators are early adopters of new technlogical developements, the talking point persists that enforcing the rights of creators can only “stifle innovation.” This “Luddite” critique of copyright rights was used to defend the predatory models of social and streaming platforms (and defend outright piracy), and now it is being used to defend the development of generative artificial intelligence (GAI).

Even if it were true that creators historically fear new technology until they discover ways in which it fosters new forms of expression, GAI does not easily fit analogies to tech revolutions of the past. Nevertheless, comparisons to the invention of photography do at least allude to the right starting point for a conversation about protected “authorship” using GAI as a tool of production. Before I proceed with that subject, however, let me clarify that a discussion about authorship with GAI does not necessarily justify the development of the products by means of “training” models with protected works. More on that below.

The Supreme Court Finds Authorship in a Photograph

The seminal case Burrow-Giles Lithographic Co. v. Napoleon Sarony (1884), which affirmed copyright protection for photographs under U.S. law, underlies the conversation about whether, and under what conditions, GAI may be used as a method of producing works that may be protected by copyright. As discussed in a recent post about Dr. Thaler’s lawsuit, the rule that human authorship is required for copyright rights to attach to a work should not be abolished or changed. But from there, the question remains as to how a human might use GAI as a tool to create a work of expression that is protected by copyright.

In Burrow-Giles, the defendant infringed the photographic portrait “Oscar Wilde No. 18,” taken in 1882 by the celebrity photographer Napoleon Sarony. The defendant argued that, as a constitutional matter, Congress should never have protected photographs as “writings” under a proper reading of the IP clause in Article I.[1] The heart of the defendant’s argument rested on the premise that the machine made the image, not the man. The Supreme Court, however, agreed with Sarony’s argument that his creative choices—posing Wilde, lighting, setting, arrangement of the furnishings, etc.—all constituted “authorship” of the resulting photograph, and thus, Congress had the authority to add the medium to the statute as a form of “writing.”[2]

From this precedent, then, it might seem like short work to argue that instructing a GAI to produce an image from one’s mental conception is easily analogized to Sarony, or any photographer, who selects and arranges certain expressive elements to produce the final work. And to an extent, this view is well-founded, at least as a starting point. But what frustrates the analogy, of course, is that a GAI is capable of producing something that is apparently “creative” with either no, or less than minimal, human direction.

Tell your camera to make an image of “Two mermaids and a walrus,” and the camera will do nothing whatsoever. Type that same prompt into Midjourney, and it will produce a few variations depicting the idea of what you described, but the authorship (i.e., how the idea is expressed) is not yours any more than if you were to present the same idea to a human artist who then created the image. A work generated by an AI is a probability outcome, a metaphorical statement roughly translated as, “Based on the information available, this is probably an image of two mermaids and a walrus.” So, how it initially represents the unprotectable idea of that image is a crapshoot and is in no way “authored” by the user who entered the purely instructional prompt.

But if the user of the GAI begins with the initial output and then proceeds to enter more complex and nuanced prompts, altering the image until it looks like what she has in mind (i.e., what she wants to express), this can reasonably be compared to the photographer in the studio. For instance, a photographer might begin by placing the subject against a simple backdrop, capture a few tests to get the creative process started, and then pose the subject, alter the lighting, employ makeup, wardrobe, set dressing, props, etc., until the idea of the subject becomes a distinctive expression or series of expressions.

I use this example on purpose because it emphasizes an important and vexing difference between photography and GAI from a copyright perspective. Whereas those first iterations the GAI produces of “two mermaids and a walrus” are not protected by copyright, those first test photos by the photographer (even if they represent steps toward the final images she has in mind) are protected by copyright. Further, the distinction between the two generative acts is not measured by the amount of labor performed. As a matter of doctrine, “sweat of the brow” neither vests copyright rights in an author nor gives an author any greater protection because she “worked harder” to achieve a particular result.

This is one reason Burrow-Giles is a starting point. One need not engage in the amount of creative control the Supreme Court inferred from “Oscar Wilde No. 18”—indeed, Sarony was more meticulous than the Court recognized—to claim copyright in a photograph. The spontaneous or serendipitous photograph taken by the “amateur” is automatically protected along with the painstakingly crafted, expert photograph.

Some have described this doctrine as one that rests upon a “convenient fiction,” a tautology that copyright “protects ‘original works’ made by ‘authors’ because ‘authors’ are people who make ‘original works.’”[3] And, indeed, this critique emphasizes the important distinction that with GAI, the question of “authorship” demands that we identify the human spark separate from the machine’s unprecedented capacity to make something on its own.

The Sarony Paradox

The conditions of 1884 are ghosts in 2024. Inference is not evidence of authorship. It is only in the last few years that one must wonder whether volumes of “creative” works have authors at all. One might even discover a “19th century cabinet card” that was generated by a computer last month. The card is neither work of authorship nor historic artifact of the period it claims to represent. It is, like so much material in the “abundant” digital age, just a prank—more disposable flotsam. The internet is of course flooded with such works, and both professional creators and rational minds, clinging to that anachronism we call “reality,” scorn the AI junk heap. But this sentiment, which I generally share, does not resolve the AI authorship question in copyright law.

As important as Burrow-Giles remains, it was also relatively simple work for the Court. It merely had to infer Sarony’s authorship from the evidence plainly visible in the photograph, and Sarony’s counsel, a skilled copyright attorney, provided descriptive language which the Court even copied in its opinion.[4] At the same time, the Court did note that, perhaps, an “ordinary” photograph might not be protected, and I often wonder how the same arguments might have been weighed if the photo before the Court had been one of the many “ordinary” portraits made at the time.

Personality of the Artist

Beginning in 1903, the Court moved on to what some might describe as a metaphysical conclusion that the “personality” of the artist lives in works where protectable expression may be quite subtle. Justices Holmes and Hand both articulated this notion,[5] which informed the doctrine known today as the “modicum of originality” necessary for copyright rights to attach to a work.

So, while it is fun to play alternate history and imagine the Burrow-Giles Court considering, say, Lynn Goldsmith’s comparatively minimalist portrait of Prince, the bottom line is that her photograph is protected while an image of Prince requested from a GAI is not. And the task in the present is to decide what, if anything, the human using the GAI might do to create an image in which even a modicum of his “personality” can be said to live in the work.

One could argue that because the dataset of the GAI comprises millions of personalities of millions of artists that, in general, its probability outcomes will only express a randomly selected arrangement of those personalities but never the personality of the GAI user. Here, the developers attempt a sleight of hand, arguing that every author both consciously and unconsciously learns from, or is inspired by, other works they have experienced. This is true but irrelevant.

Of course, works experienced by the artist shape her personality, which may be reflected in her work. But that creative experience is sequestered from at least the initial output of the GAI. Even more dubious is the prompt which instructs a GAI to produce a work “in the style of’ a named artist, directly conjuring the personality of a specific author and, quite possibly, producing a result that infringes that author’s copyrights. But what about the artist who begins with his own, highly original, mental conception and then makes extensive and nuanced use of the GAI as a tool to express that conception?

Authorship in Allen v. Perlmutter

Artist Jason Allen, used Midjourney to generate an award-winning image called “Théâtre D’opéra Spatial.” He was denied a registration in the work by the Copyright Office and is now suing for relief. Unlike Dr. Thaler’s lawsuit, which asks the court to abandon the human authorship requirement altogether, Allen presents a compelling argument that his visual work clears the bar for “originality” with room to spare. Not only does his brief rely on Burrow-Giles, but the following description could almost be a contemporary version of Sarony’s brief:

Plaintiff initially envisioned a detailed image of women in Victorian dresses wearing space helmets. He wanted to bring that vision to life using the Generative AI tool called “Midjourney.” He selected the colors, the style, and the era of the artwork, and arranged the elements in the image to represent the women dressed in elegant Victorian dresses performing opera on stage, their attire presenting a juxtaposition between old-world charm and a futuristic twist. He selected and arranged the elements to depict each performer wearing a space helmet, creating a striking contrast between the classical and the sci-fi elements. Plaintiff set the stage in a grand theater, with an audience watching intently, overlooking a large circular window through which the vast expanse of the outer world is visible, adding an otherworldly ambiance to the performance.

According to Allen, he re-prompted Midjourney 624 times until he achieved the desired result—a process he reasonably analogizes to a motion picture director doing multiple takes, citing the world record at 148 takes for a scene with dialogue. While Allen’s descriptions of the process like “tedious, complicated, and frustrating” may be excluded by the court as “sweat of the brow,” Allen makes a plausible argument that he expressed his mental conception in a fixed visual work, applying the same principles that protected Sarony and all photographers ever since.

At present, the Copyright Office may be too intensely focused on “control” of every aspect of a work when, as discussed, copyright can attach to even the amateur photographer for whom even basic settings like shutter speed and aperture are automatically adjusted by software. Additionally, “selection and arrangement” of expressive elements constitutes authorship as a matter of doctrine. And importantly, the Copyright Office is not the right venue to decide how “broad” or “thin” copyright protection might be for a specific work. Registration is an administrative process, and it is sufficient to ask the applicant to disclaim whether AI was used (and perhaps describe that use), but the more nuanced consideration of what is or is not protected in a work (i.e., a substantial similarity test) has long been conducted by the courts.

Of course, Allen is one creator in one case, and even if he succeeds in proving authorship of his visual work, this does not resolve the question of whether the flood of authorless works produced by GAI might be generally harmful to copyright doctrine. One could argue, as a practical matter, that those works are as irrelevant as the millions of photographs taken daily by cellphones, none of which will ever be registered with the Copyright Office or have the attached rights enforced by their owners. On this basis, one might decide that the Allens of the world should be able to register their claims of copyright in contrast to the majority of authorless works that will never be claimed or adjudicated.

While that may be true in principle, in practice, there will be chicanery. Parties will lie. And if there is a way to game a system (i.e., to automate claims in volumes of GAI material and enforce those claims for damage awards), somebody will at least try it. Michael Smith faces a criminal indictment for automating royalty payments to himself by flooding streaming services with AI musical dreck. Although not a copyright matter per se, the Smith example predicts the kind of shenanigans we can expect with mass GAI outputs, which is anathema to copyright’s purpose to incentivize humans to create works.

Authorship with GAI Does Not Justify Development by Mass Infringement

Weighing the matter of “authorship” in GAI outputs is separate from the question presented in every active lawsuit against the developers—namely, whether machine learning (ML) relied upon mass copyright infringement of existing works. Additionally, recognizing that authorship with GAI may be allowable under the right conditions should not be construed to morally or legally justify GAI development by means of ingesting protected works without permission, compensation, or transparency. On the contrary, I would say that simply because authorship with GAI may be plausibly argued as a doctrine, this does not in itself favor a finding that ML with unlicensed works is transformative fair use.

The developers will first argue that their products cause new works to exist in general and that this alone “fulfills the purpose of copyright.” Second, they will contend that their products are “tools” providing new methods for authors to create works of expression. The first argument is simply wrong, while the second argument (as discussed in this post) might support a finding that a given GAI is “slightly transformative,” a precedent held insufficient to carry the day on fair use.

Works Produced by Any Means?

Contrary to the PR messages coming from the Chamber of Progress, copyright’s purpose is not to cause works to exist by any means. From its inception, and specifically in the U.S., copyright was codified as an incentive to human beings, who have the talent and desire to create and distribute works of cultural value. Clearly, GAIs are no more incentivized to produce creative works than cameras or pianos, and in response to technological developments, Congress and the Courts have always sought to protect the author’s incentive.

In response to the invention of the player-piano Congress determined in 1909 that the scrolls were mechanical copies of music compositions created by human authors. Imagine if the piano makers had argued that each piano in each home performed a unique expression of its “personality,” and that this was, therefore, expanding the purpose of copyright. Absurd as that argument would have been, it is analogous to the contemporary GAI developer’s claim that their machines, capable of reading and playing back a random selection of the “scrolls” of millions of compositions, produce outputs that fulfill the purpose of copyright.

GAI as “Tools” for Creators

As a fair use argument that GAI are “tools” for creators, the scope of the business models of the major AI companies in suit, is instructive. If the major AI developers intended to build “tools” for creators (like Procreate for illustrators), their investors may be at even greater risk than some analysts have suggested. There simply are not enough professional creators in the world to subscribe to these products as “tools” and generate ROI for the billion-dollar cost of development and maintenance. (Adobe is used by approximately 25-million creators, but nobody is talking about refiring nuclear power plants to maintain Creative Suite.)

For example, the music making products Suno and Udio, presently being sued by the record labels, are anticipating that consumers will pay monthly subscriptions to use these GAIs as alternatives to listening to artists’ sound recordings. I predict this model will not be profitable, but from a fair use perspective, the ambition itself militates against a claim under factor one that the primary purpose of these products is to build “tools” for professional music creators.

Not only do Suno and Udio produce volumes of authorless works, but even where real musicians might use them as “tools,” the evolving doctrine on authorship implies considerable uncertainty as to how, and how often, use of these “tools” will result in protected works. Allowing for a minority of outputs to be plausibly considered works of authorship is the reason I would argue these products may be “slightly transformative,” but it seems clear that the primary purpose is to make toys for consumers, not tools for creators.

Further, if I’m wrong about the market, and the business models of Suno and Udio were to be successful as planned, these consumer toys become substitutes for music creators. And whatever else we might say about this as a cultural matter, the result is antithetical to the purpose of copyright law, which again, militates against transformative fair use.

Finally, the “tools” argument for fair use is intertwined with the authorship question. To the extent Burrow-Giles is instructive on the question of authorship of AI generated visual works, it may be muted when considering the use of GAI for works in other categories. Photography was seminal and remains paradigmatic in establishing a low originality threshold, but the considerations must naturally be articulated differently with literary, musical, and other works. As such, a “tools” based fair use defense may be stronger for one GAI product and weaker for another.

Thanks for indulging this long post. These are complex questions that, as mentioned, are difficult to analogize to technological developments of the past. Not only are GAIs uniquely productive compared to other technologies, but they are also still developing. The camera, player-piano, VCR et al. were all clearly defined in their functions at the time copyright confronted their potential effects on creators. This is worth noting when GAI developers lean too hard on those precedents.

[1] “…by securing for limited times to authors…the exclusive right to their respective writings…” Ar1, Sec 8, Cl 8 U.S. Const.

[2] Of note, photography means “light writing.”

[3] Newhoff, Who Invented Oscar Wilde?, citing Jane Gaines, Contested Culture.

[4] Moreover, Congress had added photography to the Copyright Act nearly 20 years prior to the case, and the Court might have been reluctant to overrule the Legislature without a damn good reason.

[5] Holmes in Bleistein (1903) & Hand in Jewelers’ Circular (1921).

Comparing AI Prompts to Button-Pushing on a Camera

Plenty is being said about AI systems that generate visual works, written works, music, etc. And plenty more will be said, especially now that lawsuits have been filed against some of the AI-generated image companies. In this post, I want to address a misconception about authorship in copyright law that may be warping the AI conversation. As I understand the argument, some AI proponents allege that the act of writing prompts is comparable to the act of pushing the button on a camera and, therefore, vests copyright rights in the proverbial “button pusher.”

Although it is possible to conceive a scenario in which this analogy might apply, it is important to first understand that the underlying premise (i.e., that button pushing establishes authorship in a photograph) is wrong. In fact, when photography emerged as the first machine-made work, it posed a challenge to copyright law that still provides an ideal context for discussing what it means to say that copyright protects creative expression the moment the author causes that expression to be fixed in a tangible medium. Note that the key ingredients are expression, an author, and fixation, and inherent to the process binding all three is an interval of human effort enabling the author’s concept (or vision) of the expression to be manifest as fixation.

With photography, the interval of effort may be stately or a mere fraction of a second, but copyright law does not discriminate between the photographer who carries a vision in her mind for weeks of preparation and arrangement and the photographer who captures a fleeting moment from real life. In both cases, triggering the shutter is the proximate cause of fixation,[1] but vesting copyright rights in the photographer is predicated on an assumption that, even in a fraction of a second, she made creative choices sufficient to find a modicum of original expression in the image.

Various Scenarios in Which It Is Not About the Button

In the case of a studio shoot with a lot of preparation, lighting, props, wardrobe, etc., the photographer may not even touch the camera very often. It may be mounted on a tripod with an assistant triggering the shutter from a computer or remote control while the photographer directs all the creative aspects that comprise the resulting images. Copyright holds unequivocally that this individual is the author of the photographs because it is his expression that is being fixed in each image, but the mechanical “button-pushing” is irrelevant except as a purely mechanical step in fixation.[2]

For the street photographer or photojournalist, the same principles apply, but copyright allows for the arguably metaphysical assumption that even in the tiny interval between seeing the real-life subject and capturing it, the photographer makes subtle choices that imbue the work with sufficient expression to be protected. Again, the button causes fixation but is not the basis of authorship, and this would be evident in the analysis of the content and qualities of the photograph, if it were to become the subject of a copyright infringement lawsuit.

By contrast, if a truly accidental photograph is captured (e.g., by a camera accidentally dropped from the Eiffel Tower), there is no authorship in that image—not because a human did not push the button, but because there is no colorable nexus between the human’s mental conception and the resulting photograph. On the other hand, if a photographer intentionally drops a camera from the Eiffel Tower and triggers the shutter by remote on its way down, copyright attaches to those images—not because a human pushed the button, but because a human conceived of the series of falling photographs and arranged the circumstances by which they could be made.

Although it is important to note that cameras are not machines trained with a corpus of existing photographs, this last example may be the closest analogy to the prompt directing the AI generator (in its current state) to make an image. If the prompt writer has a general sense of the image she wants to produce, but there is still an element of chance about what the machine will make, the prompt writer may argue that she is no less an author than the photographer who intentionally allows some element of chance into the process of making his images.

While this premise sounds reasonable as a general proposition, what it really implies is a case-by-case consideration as to how much human expression exists in the resulting works. Even in the example of the camera tossed intentionally off the Eiffel Tower, the photographer can control certain qualities in the images and may even have a vision for how they are to be used, displayed, or distributed. He knows the characteristics of the camera and lens and can select settings with the intent to control some of the qualitative results in the final photos.

By contrast, the prompter directing the image-generating AI is arguably not in control of enough of the qualitative elements in the final image to claim authorship—at least not at the current state of the technology. Entering the prompt “A mermaid wrestling a sea lion in outer space in the style of Cartier-Bresson” may produce an image that checks each of those boxes, but the prompt writer is not controlling the qualitative choices that comprise the result. Composition, line weight, shading, lighting, texture, scale, proportion, etc. are all “selected” by the AI based on what it has “learned” from the millions of visual works fed into its code, so there is a critical disconnect between the human’s vision of “A mermaid wresting a sea lion in outer space in the style of Cartier-Bresson” and the interval of effort that fixes the image in a tangible medium.

At some future state of the technology, the human may prompt a draft image to be made and then prompt changes to the qualitative elements, at which point it may be tough to deny that there is authorship in the resulting work. If these technologies develop in this way—such that the prompter is essentially painting with words instead of a stylus—this anticipates that, for instance, a disabled individual could truly create visual works with her mind akin to the way Stephen Hawking wrote books. But in this paradigm, the AI does not present a unique challenge to the concept of authorship because the human is in control of sufficient expression in the work.

Dynamic Ethical Standards

Of course, this theoretical discussion assumes integrity among individuals who claim authorship in various works. The guy whose camera accidentally snaps a photo does not have to admit he played no role in its making, and AI currently presents a similar challenge. The issue of integrity is a hot conversation we’re having in response to generative AI—especially in academia where ChatGPT is already “writing” papers for students. Notably, few people would question the judgment that the student who turns in a paper “written” by an AI is a cheat deserving the same sanctions as if he were caught plagiarizing. Yet, somehow, when the material is a “creative” work, AI advocates argue that the prompter is an author of a visual work comparable to a photographer using a camera.

This dichotomy can only be reconciled by confronting the fact that certain uses of AIs are not only not authorship but are needlessly destructive to the very purpose of intellectual and cultural endeavor. The student who shirks writing his own paper learns nothing and so, potentially graduates from a program unqualified. Likewise, the prompter using an image-generating AI is not an artist and contributes nothing to the purpose of art. Thus, while there may be uses for these systems, their potential cultural value depends on more than technological development for its own sake.

Because these technologies are still new and still primitive relative to their expected capabilities, it is hard to predict where the more serious aspects of the narrative will lead. Some of the generative AIs are barely more than toys at the moment (e.g., turning profile pics into oil paintings), but what they will do a year from now, let alone five years, will inform how we address the issues—cultural, legal, and ethical. For now, though, I insist that no, prompting is not equivalent to button-pushing with a camera, even if button-pushing were as significant as many people think it is.

[1] This is true with digital photography. With film, one could argue that the latent image on the negative is not fixation until it is at least developed because it cannot be perceived by either human or machine reader.

[2] And there are likely to be further steps like retouching or printing, which may fix the final version of the image.

Photo by author.

Ephemera and Other Fair Use Defenses

I understand pursuing a fair use defense in a copyright case when the user of a work does something new and creative and believes there is a plausible argument to be made. I also understand why copyright skeptics file amicus briefs seeking opinions that would change the fair use doctrine. But what I find astonishing is the professional, who makes an archetypal use of a work, for which permission was obviously required, and then believes they can prevail on fair use through costly litigation. Because this keeps happening.

In the Spring of 2019, fine art and landscape photographer Elliott McGucken captured a transitory natural phenomenon—the sudden appearance of a lake in the middle of Death Valley, CA, known to be one of the hottest and driest places on Earth.[1] Heavy rains that March formed the 10-mile-wide ephemeral lake, of which McGucken made a series of beautiful and rare photographs, and several publications used his images by permission to accompany articles about the unusual event.[2] But when UK-based, digital publisher Pub Ocean failed to obtain permission for a similar use, McGucken sued for copyright infringement.

Using a photograph for illustrative purposes in an article or book is a paradigmatic use that requires license from the copyright owner. Newspapers, periodicals et al. have had to obtain permission for this purpose for as long as photographs have been protected by copyright law. Yet, despite this longstanding practice, even large commercial entities, perhaps lost in digital-age habits, too often use images without permission. Then, rather than settling with the photographer upon notification of the alleged infringement, these parties compound the error by litigating fair use defenses that will evaporate as surely as a lake in Death Valley.

Granted, in McGucken v. PubOcean Ltd, the fair use defense did prevail on summary judgment in the California District Court, and we have seen lower courts deliver such opinions in a handful of cases of this nature. But I cannot think of one similar instance in recent years that has not been overturned on appeal, including this case. It’s not that the fair use defenses are close calls, but rather, it seems, that certain district courts are hasty in reviewing their own circuit precedents. And in circumstances like this one, defendants are unlikely to find opinions favoring fair use any circuit.

Of the 27-page opinion delivered last week by the Ninth Circuit Court of Appeals, six of those pages cite a litany of precedent denying Pub Ocean any footing on factor one of the fair use analysis (purpose of the use, including commerciality). And here, as in other instances, losing on factor one is fatal to the rest of the fair use defense. In fact, commercial users of photographs (and their counsel for that matter) could read this opinion as a primer about typical uses of works that are not “transformative” under prong one.

As if wandering in a desert with a divining rod, Pub Ocean tried to exploit the seemingly vague semantics of the “transformativeness” doctrine, hoping to escape a sound reading of case law. It tried to argue, as others have done before, that merely placing McGucken’s photographs in the context of a news article, surrounded by text and captions, imbues the photographs with “new meaning and purpose” sufficient to find “transformativeness.” But the court writes …

Practically speaking, it is hard to imagine what would not be a fair use, or what could not be readily turned into a fair use, under Pub Ocean’s theory. Any copyrighted work, when placed in a compilation that expands its context, would be a fair use. Any song would become a fair use when part of a playlist. Any book a fair use if published in a collection of an author’s complete works. It would make little sense to treat this kind of “recontextualizing” or “repackaging” of one work into another as transformative.

More specifically, the court reaffirms what it means to make fair use of a work for the purpose of
“news reporting,” often a subject of confusion because it is one of the statutory examples cited as a purpose that may favor fair use. But here, the court clarifies, “We have recognized that ‘where the content of the [copyrighted] work is the story. . ., news reporters would have a better claim of transformation.’… ‘[C]ourts should be chary of deciding what is and what is not news,’ that label alone does not get Pub Ocean very far.” (Citations omitted).

Users of works are often puzzled by this distinction, but the courts are generally clear-eyed on the principle that the work used must be the subject of the commentary, criticism, or news reporting in order to favor a finding of fair use.[3] By contrast, when a work is used to illustrate, enhance, decorate, etc., especially by a commercial user, then use of the work requires permission of the copyright owner because it is unlikely to fall under the fair use exception.

Further, the court in McGucken adds a footnote stating that even if Pub Ocean had raised the argument that some portion of its article comments upon the photographs, this minimal commentary, in context to the rest of the article, would be unlikely to “help Pub Ocean establish fair use.” Again, this is instructive. Far too many users of visual works believe that adding a bit of text on top of an image (e.g., in a meme) or a caption below it automatically makes the use a fair use, and this belief persists despite guidance from many legal experts that fair use can be tricky and is always a case-by-case consideration.

But there is nothing complicated in McGucken. A commercial publisher used a photograph in the most common manner for which publications have long had to license photographs. The defendant has no foundation for establishing a purpose that would favor a finding of fair use, and absent such a purpose, the other factors fail almost by default. For instance, the court clearly states, under the factor four consideration (potential market harm to the original work), that McGucken’s interest in licensing his photographs would be substantially harmed if Pub Ocean’s use were allowed and became rampant among other users.

I skipped over factors two and three on purpose because a) factor two (the nature of the work) almost always goes to the plaintiff owner of a photograph and is rarely determinative of fair use outcomes; and b) I wanted to highlight the factor three consideration (amount of the work used) because it appears the defendant made another typical blunder. “Pub Ocean argues that this factor favors fair use because the article used twenty-eight photos from other sources, making McGucken’s photos only a small part of the article as a whole,” the opinion summarizes.

That is wrong as a matter of law. The third fair use factor does not consider the weight or role of the used work relative to the scope of the work in which it is used. Here, the court rejects Pub Ocean’s claim stating, “this approach runs contrary to the text of the statute, which plainly calls for a comparison of ‘the portion used’ to ‘the copyrighted work as a whole’ and not the infringing work.” Further, the court reaffirms the interaction between factors one and three, stating, “Pub Ocean failed to point to a transformative purpose that would justify reproducing any of McGucken’s photos—much less the entirety of twelve of them.”

As I say, I don’t get why certain commercial entities so flagrantly infringe photographers’ copyright rights but am even more baffled when they spend tens of thousands of dollars on a doomed fair use adventure. I imagine Mr. McGucken would have settled for a fraction of Pub Ocean’s legal fees to resolve the matter, but it seems as if something in the air whispers “fair use,” and even defendants who should know better chase that vision only to discover that it isn’t even an ephemeral lake but is just a mirage.

[1] This post was drafted while unprecedented rains were flooding Death Valley National Park, trapping tourists and staff.

[2] SF Gate, the Daily Mail, the National Parks Conservation Association, PetaPixel, Smithsonian Magazine, AccuWeather, Atlas Obscura, and Live Science.

[3] Educational use is a bit different, and different conditions apply—namely that works used must be in a traditional classroom setting.

Photo source by: Makaule