NY Times Files Ridiculous Copyright Lawsuit Over Book That Mocks NYT For Glamorizing War

from the fair-use dept

Well, this is disappointing in the extreme. The NY Times is a famous defender of free speech, and has been a key player in many important free speech battles. And now it's filed a ridiculously petty lawsuit claiming copyright infringement over some thumbnail images of NYT's covers in a book (ht Rebecca Tushnet for blogging about this). The book in question is War Is Beautiful: The New York Times Pictorial Guide to the Glamour of Armed Conflict*. The asterisk then reads *(in which the author explains why he no longer reads The New York Times). Here's the cover:
As you might have already figured out, the book is an exploration, by author David Shields, of how the NYT has a history of glorifying war with the images it puts on the front page. The book was a bit controversial, and as the Mother Jones link in the previous sentence shows, not only is it somewhat selective in choosing certain images while ignoring others, it also appears to have a very subjective view of what photos are too glamorous for war (some appear to be pretty unglamorous).

Still, Shields and his publisher, Powerhouse Books, appear to have actually gone through the trouble of properly licensing the photographs in question from the NY Times. So that's not what the lawsuit is about. Instead, it's the fact that the the book's "endpapers" (i.e., the inside of the covers) includes a bunch of thumbnail images of the full front page covers whose images are shown later in the book itself:
And it's because of those thumbnail images that the NY Times sued:
On or about November 10, 2015, Defendants published the Infringing Work. The book contains prints of numerous photographs copyrighted by NYTC. Defendants properly sought and obtained licenses from NYTC for the limited use of photographs in the Infringing Work.

However, Defendants also printed, without permission, copies of the 64 Front Pages along the inside cover of the Infringing Work. Defendants never sought or obtained a license for the use of the 64 Front Pages.
Yeah. And there's a damn good reason why the didn't seek permission. Because they don't need to. The use of thumbnail images in this sort of work is clearly fair use. Tushnet does a good job rapidly running through the four factors of fair use:
Let's review: Factor one, purpose of the use: images contextualizing the main argument of the book, which involves the overall aim of the Times, not just the photos in isolation but their presentation by the paper. That's classic historicization and commentary: transformative use under Dorling Kindersley. Nature of the work: already published, favoring fair use; news photos and news stories, even if creative, are highly factual, though that doesn't matter much in transformativeness cases. Amount taken: The Times apparently claims a copyright in the layout of the front page, but really the work would have to be that day's print edition, meaning that the book reproduces a fraction of the work, although qualitatively perhaps more important than an average page. But the real kicker, of course, is size. Much more than in Dorling Kindersley, where you could at least read most of the text in the images, there's no way anyone could read the chunks of news stories at issue here. Size cuts decisively in favor of fair use. Market effect: the Times isn't entitled to any market for transformative uses, even if there were some market for unreadable thumbnails.
The "Dorling Kindersley" mentioned in Tushnet's summary is the famed Bill Graham Archivs v. Dorling Kindersley case, which we discussed a decade ago when it first came out and have cited many times since then. The issue is actually remarkably similar. In that case, it was a book about the Grateful Dead, showing a bunch of Grateful Dead concert posters, many of which were owned by the Bill Graham Archives. But the appeals court ruled that these were easily fair use, even when being published in full in a commercial (for profit) book. The reasoning was basically that the images were smaller than the original and were used within a totally different context, being about the history of the band. The same basic issues absolutely apply in this latest case.

And that case was in the 2nd Circuit appeals court, which covers the Southern District of NY where this new lawsuit was filed. In short, the court should be able to easily toss this one out based on the precedent in the poster case.

But, even beyond that, the whole thing seems both petty and silly. The NY Times itself, again, is a regular supporter of free speech and fair use. To be filing this lawsuit seems really against its own long term interests. And, really, as Tushnet notes as well, it appears to have been filed more because the NY Times doesn't like the photo book, since it's expressing a rather negative opinion about the NY Times:
It's hard not to look at this lawsuit as the reaction of a paper embarrassed at having licensed photos for what turned out to be a work of harsh criticism. Whether that criticism is justified or not (and whether licenses were even required, or sought only to avoid a legal battle), the once-Grey Lady looks unappealingly thin-skinned.
Powerhouse Books has filed its response to the lawsuit in which it piles on a rather long list of defenses, including (of course) fair use and free speech, but also questions whether or not some of the NYT's copyrights in those covers are defective or invalid. It also suggests some of the copyrights have been abandoned and some works are in the public domain. And it even tosses in an "unclean hands" defense, which would be potentially interesting if it's ever developed. For the most part, the publishing house appears to be tossing out every possible defense just in case it wants to focus on them later, but, really, fair use should be all it needs to prevail easily here.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Ninja (profile), Jan 26th, 2016 @ 10:00am

    This has "Streisand Effect" plastered all over it. David Shields should thank the NYT for the free publicity. Well, almost free.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Jan 26th, 2016 @ 10:01am


    the attractive or exciting quality that makes certain people or things seem appealing or special

    In this case war is exciting and special. Both are not always positive terms. Taking risks with your life is exciting. Watching others risk their life is also exciting.

    Watching a country fight a war is exciting... therefor the very nature of media is to glamorize anything they report on, whether they intend to or not.

    reply to this | link to this | view in thread ]

  3. icon
    jupiterkansas (profile), Jan 26th, 2016 @ 10:17am

    Re: Glamor

    I don't think the nature of media is to glamorize. The nature of media is to report on interesting things. Glamorous and exciting things are interesting. They aren't glamorize by being reported on.

    reply to this | link to this | view in thread ]

  4. icon
    JoeCool (profile), Jan 26th, 2016 @ 10:30am


    When lawyers infest a company, it's time to shut it down. There's nothing left but to fumigate and/or start over.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Jan 26th, 2016 @ 10:34am

    Re: Re: Glamor

    unfortunately, to some, they are, it's human nature

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jan 26th, 2016 @ 12:17pm

    Re: Re: Glamor

    Words have a meaning, what you THINK is not important! What the definition of it IS important. The medias nature is one that glamorizes, this really is not up for debate unless you have an agenda to intentionally muddy the vocabulary by assigning positive/negative polarities to words that do not have them.

    Lets take the word interest, the context in which it is used typically determines its polarity in the mind of the unwise.

    "Interest in Video Games" would typically mean someone may be positively interested in them for entertainment value, however someone may hate them and are only interested in researching their affects on the players.

    As you can see at the front of that paragraph the word is taken to imply a positive polarity however the end of it reveals that the word is merely a polar neutral thing. Glamor is much like this. Hopefully this explains it better and reveals that NYT itself is a force that seeks to pervert the English language to its own ends by refusing to accept that what they do "glamorizes" things. Likewise that writer of the book is abusing the language to drive public opinion of the masses illegitimately as well.

    The real question... can YOU see what is actually going on here?

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Jan 26th, 2016 @ 1:34pm

    God is Dead, and the NY Times is a mouthpiece for the US government.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Jan 26th, 2016 @ 4:05pm

    I don't get it. How is it possible to properly license photos for use in your book, but not be able to put all 64 photos on the same page? Is there some kind of separate copyright for using two images on the same page? And if so, what happens if two different people own the photos? Who owns the copyright of both of them together?

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Jan 26th, 2016 @ 11:29pm

    > but, really, fair use should be all it needs to prevail easily here.

    I think Joel Tenenbaum and Charles Nesson might have a comment on the flaws of a lawsuit standing on a single leg.

    reply to this | link to this | view in thread ]

  10. identicon
    Wendy Cockcroft, Jan 27th, 2016 @ 2:49am

    Re: Re: Glamor

    I see you've never held a copy of Britain's "The Sun" in your hands. It's famously war-monger-y and loves to make fancy graphics and frantically jinogoistic write-ups of "Our Boys" at war. Some of these articles read more like Badass of the Week than a news report, but then its stock in trade is sensationalism.

    Disclaimer: my father used to bring that rag home, I've never bought a copy in my life.

    reply to this | link to this | view in thread ]

  11. identicon
    Soldier, Jan 27th, 2016 @ 12:03pm

    America vs IRAN

    Impeach Obama Deport him to IRAN

    America knows how to deal with IRAN who has destablizing mideast all along.

    We are NOT AFRAID of iRAN
    We are NOT AFRAID of North Korea

    You threaten us, take a lesson from a cat. They will pounce at first sight of threat.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Feb 3rd, 2016 @ 2:21pm

    "The NY Times is a famous defender of free speech"

    I think you meant "famous defender of speech they currently agree with"

    reply to this | link to this | view in thread ]

  13. icon
    The Wanderer (profile), Feb 19th, 2016 @ 4:33pm


    If I'm reading the thing correctly, what you've missed is that what is being sued over is not the photos, but the front pages.

    The photos appeared on the front pages, and the photos were licensed for use in the book. If they had also put the photos all on one page, that would almost certainly have been OK, depending on the terms of the license - but that's not what they did.

    What they did put all on one page (or more like two, if I have this right) is the actual front pages on which those photos appeared - not just the photos, but the surrounding context as well. That context is covered by its own copyright, and is not covered under the license.

    reply to this | link to this | view in thread ]

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