snapped shot, a website now basically shut down by the Associated Press, asks the musical question:

As an aside, I’m somewhat befuddled on this point, and hope that some of you can help clarify this for me. How in the world can one provide analysis, commentary, and criticism on news photographs, if they are forbidden from actually showing said photograph?

But, of course, one cannot. That is why the Copyright Act provides explicitly that such use is “fair use” and not an infringement.

The AP is not counting on the merits. It’s counting on intimidation and outgunning the blogger in terms of legal resources.

It’s not counting on the Blogosphere. Wonder what will happen this time?

UPDATE: Oh, my, there is a lot of this going around — but some people know how to get that mouthpiece out front fast!

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

5 thoughts on “This is a job for…”
  1. Actually, it’s quite easy to provide commentary and critique on news photographs on a blog without showing said photographs.

    It’s called a “link.”

    If you know what you’re doing – and in this case “know what you’re doing” equates to “have the ability to add a few extra characters to the link,” you can even make it pop up in a new window so the viewer can easily pop back and forth.

    And I think it is quite possible to reasonably believe that what snapped shot was doing does *not* qualify as Fair Use under either the legal standard or a reasonable ethical definition, assuming you think those are two different things.


  2. Again, it is possible for reasonable people to disagree that Congress has said that you don’t have to do it in any particular situation. I guess we’ll find out.


  3. Ron, this raises one of the nerdiest questions ever.

    You wrote:

    That is why the Copyright Act provides explicitly that such use is “fair use” and not an infringement.

    Is fair use “not an infringement” or is it an affirmative defense to infringement?

    I don’t think there is a “right answer” just yet — some courts say one, some say the other. I lean toward the way you put it — not an infringement. But, just wondered what your academic take on that might be.

    I think since fair use became part of the statute — which if I am correct it was not always — it has become “not an infringement.”  I mean, that’s just what I think. — RDC

  4. Is there an upheld decision where a court decided sua sponte to reject a claim of infringement on the grounds of Fair Use when the defendant didn’t raise it timely? I know that summary/default judgments have been denied in District Courts under a similar theory – that a defendant very well *might* raise a successful Fair Use defense even if they have not done so yet – but has any court taken that last step and essentially required a plaintiff to prove non-Fair Use or lose? If there is such a case, I would be very interested to know about it.

    I mean, I can certainly see the argument that ethically/morally a Fair Use isn’t an infringing use, but Fair Use has to be raised and proven by the defendant – even if the plaintiff doesn’t rebut a Fair Use claim, if the evidence of Fair Use fails, normally the defendant is just out of luck. (I know you know all that: I’m just explaining my logic.)

    Of course, in any case where Fair Use is even visible from the defendant’s position with a high-powered telescope, any competent attorney is going to raise it, so that might be a tough question to answer. I look forward to Mr. Coleman’s response.


    I would be surprised if there were, because fair use is a defense under the statute, and probably does not have to be pleaded affirmatively.  On the other hand, sua sponte dismissal — on the record is, well, asking a lot of a judge. — RDC

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