Legal Easel

It appears that a current lawsuit between a staff news photographer and his former employer Agence France-Press (AFP) has upped the attack on creators’ ownership of the copyrights to their own work.

A Portugal-based photojournalist, originally a stringer who had become a staff photographer for AFP, is trying to re-possess his copyrights.  According to the article, AFP is claiming, not that he has lost his claim to his work under the circumstances of his employment, but that news photographers are not, and should not be, entitled to copyright at all.

That’s a very odd position for AFP to take,  since there seems to be no reason at all for AFP to do so.  If the photographer was, as the article says, a “staff photographer,” then technically he was an employee of some sort—which means that AFP could legitimately claim that it owned his work as works made for hire—and therefore if, as the news article states that AFP claims, news photography is not entitled to copyright protection, AFP could not-assert copyright protection in the work as much as it wanted to, as the work-for-hire authors of the images in question.  

It looks, however, as though AFP is playing a longer game, swinging an axe at the very root of artists’ initial ownership of their own creative work and claims to copyright protection for it—and, consequently, their independence from reliance on a single patron or employer. 

Typically, the writers of articles on copyright are ill-educated in copyright matters, and their inaccuracies are compounded by their employers’ hostility to the concept of creators owning their work, so it is always a little dicey to take a news article on these subjects at face value—and any such reportage should be met with initial skepticism.

Nonetheless, this article is disturbing.  There have been many assaults on creators’ rights to control their work over recent decades—the “orphan works” agitation, the efforts to expand “fair use” and the introduction of the non-statuory concept of “transformative use” which has polluted the statutory definition of “fair use,” the push for the idea of “commons” which suggests that people who have created nothing should have a right to freely use the work of creators. Big Tech—Google and its allies—have long made its hatred of copyright plain.  AFP merely ups the ante.

Artists who rely on their copyrights for their ongoing livelihood, and who expect to leave the rights to their works to their heirs, should be vigilant regarding the ongoing attacks upon the copyrights which comprise their legacy.

In early April of this year, artists won a semi-victory when New York’s Second Circuit found in favor of photographer Lynn Goldsmith against the Andy Warhol Foundation.  The appeals court found that Warhol’s use of a Goldsmith photo of the rock star Prince to create a series of prints was not “fair use.”  That the photographer prevailed in this case is the good news.  The bad news is the basis on which the decision was made.  

In 1984, Vanity Fair licensed a photo of Prince that Goldsmith had taken in 1981, for Vanity Fair to use as an illustrator’s photo reference.  Vanity Fair then hired Warhol to do the illustration.  Warhol did the illustration for Vanity Fair, using the photo as reference, then—unbeknownst to Goldsmith—created a series of fifteen additional prints using Goldsmith’s photo image.  Goldsmith discovered the existence of these additional images in 2016, when Vanity Fair, in the wake of Prince’s death, re-printed the article which carried Warhol’s original illustration, and one of Warhol’s other prints. 

When Goldsmith informed the Warhol Foundation that the prints were infringing works, the Foundation brought suit against Goldsmith, claiming “fair use,” and seeking a declaratory judgment that the prints were not infringing; Goldsmith counterclaimed.  The Foundation won the initial trial, but on appeal the Second Circuit reversed in favor of Goldsmith this April, finding that Warhol’s creation of the additional prints was not “fair use,” on the grounds that the works were not sufficiently “transformative.” 

The original artist won—so it’s a victory, right?  Well, sort of…and only sort of. The photographer won on appeal because the Second Circuit found that the Warhol prints were not sufficiently “transformative” to be covered by fair use. Understand that the concept of “transformative use” appears nowhere in the copyright law itself—it is a judicial invention which the Supreme Court injected into copyright jurisprudence back in 1994, in its decision in Campbell v. Acuff-Rose Music.  

Copyright law lays out four factors to determine fair use: the nature of the original work; the amount of the work taken; the purpose for which it was taken; and the effect on the commercial viability of the original work. “Purpose of the use” includes use for commentary, and parody is included within commentary—but nowhere does the statute cite “transformativeness” as a criterion.  Indeed, for a court to consider “transformativeness” leads the court into the murky realm of aesthetic judgments, rather than the more-or-less objective standards set forth above.  More important, forgiving infringement on the basis of “transformativeness” has the courts trespassing upon the creator’s exclusive right to create, or to license the creation of, derivative works.

In this instance, the court reached the right result—finding for the photographer—for the wrong reasons.  Rather than give further credence to “transformativeness,” the court should have found for the photographer on the grounds that Warhol exceeded the license under which he produced the work, as Vanity Fair had only licensed the work from Goldsmith for use as a picture reference.  The court should have respected the limitations of the license initially granted by the photographer, rather than relying on the non-statutory doctrine of “transformativeness.”