WHAT’S A COPYRIGHT? A copyright is a property right that the governments around the world recognize in a wide range of art, including photographs, music, paintings, movies, etc. Exactly how one acquires a copyright differs among countries (in the U.S. it “subsists” at the moment the work is fixed in any tangible medium of expression”), but the net result is that the author of the work generally has a monopoly on the use of the copyrighted material. SO, you might ask, how are we able to reproduce the Kate Moss image on this page? The answer: fair use (an exception to the monopoly right).
According to the New York Daily News, Playboy has sued Black Book (which launched in 1996 and describes itself as “the insider’s guide to where style and substance intersect in popular culture today”). I haven’t personally seen this lawsuit yet–it is not available on the court’s electronic system at the moment. The copyright infringement lawsuit in the Southern District of New York court alleges that Black Book reproduced images of supermodel Kate Moss from Playboy’s December 2013 60th-anniversary issue without Playboy’s consent. Playboy is asking for damages of $150,000 for each “infringed work.” If successful, this could end up costing Black Book a million dollars or more.
This suit comes only weeks after Playboy sued Harper’s Bazaar and its parent company, Hearst, based on nearly the exact same allegations. Playboy’s images are fairly widely circulated on the interwebs already, and Playboy generates lots of value through this circulation, so it might be somewhat surprising to see them so aggressively go after a media giant (and now an up-and-comer media outlet, too). But you might note two things: 1) this isn’t just any photoshoot, this is Playboy’s 60th Anniversary shoot, and I’m betting Hugh is taking this one personally, and 2) at least in Hearst’s case, the reproductions are rather egregious–the images are shared in full color, in their entirety, there’s not much in the way of media criticism or commentary, and they even reference the idea that users can see the shoot on their website instead of paying the “fiver” to Playboy. (The full images were posted on another website that apparently is not controlled by Hearst, butHarper’s Bazaar provided the link on its website. We’ll never know how a court would have ruled on that wrinkle, but for the purpose of keeping this article under 50 pages, I’m going to ignore it.)
Note the “Save yourself a fiver” bit… not something you would want to do to secure a fair use argument.
This of course begs the fair use analysis (although in this case it’s pretty clear). Straight from the copyright office:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
The original Harper’s Bazaar article as per Playboy’s complaint
With the disclaimer that I only have the original complaint (the suit has apparently been settled out of court), in the case of Hearst: Commercial? Yes. Absolutely. All of these people are making money (or trying to) off of ad sales. Nature of the copyrighted work? The images are entirely traditional, at least in the sense of copyright law. The amount and substantiality? Nothing was held back, not after the user clicked on the NSFW warning (which led to another website). The effect of the use? It seems pretty clear from the exhibits that Hearst was trying to take business away from Playboy.
So, how could an experienced giant like Hearst commit such an apparently egregious violation of copyright law? Here’s a couple ideas:
1) Poorly trained employee(s)–copyright law is disturbingly complicated, and if you’re not in the habit of running through fair use analyses,it’s certain that you will make a mistake sometimes.
Letter from Hearst to Playboy’s lawyer (sourced from the complaint)
2) Habit/Commercial Customs–as I mentioned earlier, Playboy gets a lot of value from the wide-sharing of its images. It’s some of the best brand advertising available. From what I understand, Playboy makes most of its money these days from its television channel. And I don’t think many people who were planning on buying a magazine are going to change their minds just because they found an internet site with the Kate Moss images. I would bet that most people who read Playboy have a subscription, and the ones that don’t have a subscription I highly doubt were planning on running over to a newsstand after they heard about the Kate Moss shoot (but hey, maybe I’m wrong about this). In any case, the publishing and news industry probably doesn’t want to make a habit of suing other publishers because of the precedent it sets. They probably want to offer some latitude over something like this because in the likely scenario that your publication makes a mistake in the future, you don’t want a massive suit on your hands, but instead an email request to take the pictures down. Interestingly, that’s exactly what it appears Hearst expected when it sent the Playboy a letter saying that the images had in fact been taken down.
We’ll see how it plays out with the Black Book lawsuit, but I expect that Playboy will take this as far as it needs to go to send a message that these images are no fair game for this kind of reproduction. From Playboy to the world: “HANDS OFF OUR KATE.”
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