Fair Use?

James White over at Pros Apologian is up in arms about being asked to pull a photo on his blog:

Back on June 30th I posted a short note regarding the abuse inherent in depriving a little child of a father and a mother that comes from "same sex unions." I made reference to a picture, posted on the Internet, in a major news source (MSNBC) as a glowing example of just how self-centered "same sex unions" have to be by nature. Here is the article I posted.

I was contacted by "jennifer kozumplik/nicole webber" (name provided on the contact page) and told to remove the image, found in the above linked article. I have done so pending my getting legal advice on the matter. You will find the image on the following websites, and something tells me "jennifer kozumplik/nicole webber" haven’t contacted USA Today, MSNBC, etc., demanding that the picture be removed. As I have said many times, and as more and more people are discovering, homosexuals do not ask for equal rights: they want super-rights, including the ability to shut down all expression of belief that reminds them of the moral evil by which they have chosen to identify themselves. This is a glaring example. Note the use of this picture by such national online sources as MSNBC and USA Today. Google will provide you with lots of examples, such as this one.


Let me first point out that what I think James meant to write was "some homosexuals do not ask for equal rights: they want super-rights", because obviously not every single homosexual wants super-rights. I’m sure that was just a typo.

But James does raise some interesting points

  1. Do we think that a gay couple having children (obviously with a sperm or egg or womb donor – we’re not talking about men and women who bring their children from previous relationships into gay relationships) is selfish?
  2. Is James White correct in his claim that the attempted gagging of him as regards this photo has less to do with protecting copyright and more to do with those in the photo objecting to his moral stance on their lives?
  3. Yes, I've taken the plunge and I'm showing the picture in question originally taken by Tony Avelar and distributed by AP, as a fair use of the image to describe the controversyDo we think that posting a picture of a child that has been posted ad infinitum on other websites (and specifically by the parents) is acceptable for the purposes of describing such a situation. Here in the UK (and I think in the US as well) posting such a photo would obviously be "fair use" if it was copying another person’s content for the sake of clarifying a point. The legal case for internet use is pretty clear cut and if you look at this case you’ll see that the picture of the gay couple’s kid are originally displayed in the manner of a report rather than of an artistic piece of work, so to reproduce them as part of a description of the report would be clearly fair use.

Yes, I’ve taken the plunge and I’m showing the picture in question originally taken by Tony Avelar and distributed by AP, as a fair use of the image to describe the controversy. Would you expect anything less of me?

Under US fair use law, four factors are explored as to whether the use of someone else’s intellectual or creative property is fair use. Let’s think about them as regards this photo:

i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

I’m very clearly using this image for a non-profit purpose. Neither am I depriving Kozumplik and Webber of any financial gain as they acquire no income from the picture in the first place

ii) the nature of the copyrighted work

It’s a photograph that has been widely distributed

iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

Given that unlike text you can’t quote from a photograph, the issue here is whether the photograph in and of itself constitutes the entirity of the original report or just a portion. It’s obviously the latter.

iv) the effect of the use upon the potential market for or value of the copyrighted work.

Given that the couple have had no financial benefit from the photograph, this would be a matter for AP (Associated Press).

We conclude that under US law the use of the photo in this blog to illustrate the case is fair use. Talking to my legal friends here, English fair use is a touch more lenient than US.

Of course, there is also the view that I shouldn’t be posting pictures of other people’s kids on the web without their permission, and normally I wouldn’t even think of doing that, but in this case, as James White points out, the couple has a picture of their child made available on a full public access website. Hardly the best thing to do if you’re accusing somebody else of invading your child’s privacy by posting a photo of them.

Your opinions are welcome.

11 Comments on “Fair Use?

  1. Your analysis sounds right from a legal copyright perspective.

    The couple appears to have willingly posed for the camera with the child, thinking that it would promote homosexual marriage. They seem perfectly happy to expose the child to the world as a prop for their cause. I guess they hadn’t imagined that the photo could also be used to make a case against homosexual marriage. And now suddenly they are concerned for the child.

  2. I’m not going to get into the whole “fair use” argument, but I will make a few points about the rest. For one, I think it’s presumptuous of you to add the “some” to Mr. White’s statement. I’ve never found him to be that nuanced, especially when it comes to gay or lesbian issues, where he seems to have a bit of a proud/self-righteous streak. Yes, I would rather there be some clarifiers in there as well, but I don’t think Mr. White would see that as a “typo.” If anything, he’d put “most” there.
    And no, I don’t see it as selfish for a gay or lesbian couple to want a child. Would you or Mr. White consider it selfish if an atheist couple wanted a child? There are other reasons to want a child besides the fact that able couples are commanded to have them. At least, one would hope that to be the case for Christians. Yes, some of those reasons are selfish. We want someone to carry on our memory to the next generation. We want someone who can look after us when we are older.
    Other reasons aren’t selfish. We want to give a new life a home, and we want to provide that life with all the things we didn’t have ourselves. If we are Christians, we want to raise that life to know and understand Jesus. I don’t see why a gay couple is selfish when they want a child. Misguided in terms of what is best for the child? One could make that argument. But saying someone is “misguided” and someone is “selfish” are two different ball games, and I think implying that gay men and women are incapable of loving their children as Mr. White has done here and in the past is utterly reprehensible.
    I one day want to adopt children, if I have the means to provide for them. And I intend to do this if I am married or not, because I think that giving a child a home, even if it isn’t a perfect one, is better than not giving a child one. Would that be considered selfish?

  3. Well, you’re in the UK so it’s the Copyright Designs and Patents Act 1988 that controls your use (as I think you note).

    s.30(1) states “Fair dealing with a work for the purpose of criticism or review… does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.”

    s.30(2) states “Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that…it is accompanied by a sufficient acknowledgement.”
    ISTM you aren’t critiquing or reviewing the photo as such (although you might try to make a case for that). Rather your use is part of reporting current events. As such the photo is excluded from fair dealing and your use infringes. There’s nothing to stop you linking to the photo though.
    John Foxe (Chartered Patent Attorney)

  4. John,

    Are you saying that under US law showing the photo is fair use but under English law it may not be? Also, any infringement would be on the copyright of those who took or owned the photo, not those in it?

  5. Dear Peter,

    I’m not opining on US law (I know my limits) but I initially thought you would have a fair dealing defence under UK law until I reread the act and saw the exclusion for photos. So, I concluded that using the photo is not fair dealing under English law.

    As to your second question it will perhaps help if I give an example. If I take a picture of you, I own the copyright, not you.  You have no rights in the picture.

    In this instance I presume the women concerned paid a photographer to take the picture. It is my understanding of the law that the photographer is the first owner of any copyright (s.11(1)) They will only own copyright in the UK if the photographer assigned the copyright to them in writing (s.90(3)). So, if the women complain my UK response will be ‘prove you own copyright then.’

    (As an aside most wedding photographers in the UK do not assign copyright. If you want more pictures you have to pay the photographer for them.)

    The position on ownership in a photograph may be different in the US.


    JF CPA

  6. Aha, just found s.85(1) A person who for private and domestic purposes commissions the taking of a photograph…has…the right not to have copies of the work issued to the public, the work exhibited in public, or the work communicated to the public.

    This section is headed ‘Right to privacy of certain photographs and films’ and it falls within the sections covering moral rights. It would suggest the women could argue your posting their picture infringes their moral rights. However, would an English court enforce these rights seeing that the picture in the public domain, ie new web sites (and is thus no longer private) with the women’s consent? I confess I don’t know the answer to that one but my gut feeling says this would be a good defence.


    JF CPA

  7. What occurs to me on reading this is that if I were to find a photo of myself, that I had taken or commissioned myself, in an article slagging me off so badly as the one in question seems to have done (“child abuse” is a pretty loaded term, especially nowadays) I would probably want to exercise any legal rights I had to get it removed.  Whatever the legal position (I had better leave the technicalities to the lawyers!), it strikes me that James White is a little unrealistic to act so outraged and heap even more insults on the pair for doing this – whatever did he expect?  I think it’s hardly a case of “super rights”, it’s what most people would try or at least want to do; moreover, as far as I can tell from what I have read here the couple have made no attempt to silence JW in the sense of having his own words removed from the public domain, so “shut down all expression” etc. is in this context simply absurd. “Those who live the sword die by the sword” and I guess much the same applies to the pen!  I don’t mean people shouldn’t have a right to object to one another’s behaviour, whether for religious or other reasons, but if one attacks people intemperately one can hardly expect them to leave one in peace (especially if they’re not Christians and don’t see the need to turn the other cheek). I wonder whether it isn’t the one who expects such a privilege that is really calling for “super rights”?

  8. I certainly don’t claim to be a lawyer, but it seems the photo’s use in discussing public policy is Fair Use.  However, it’s not clear to me how White’s website would qualify under the first factor.  It seems to be a commercial website that sells products and solitics donations.  A lawyer could attempt to argue that White was using the couple’s likeness to solicit customers.

    The AP, Facebook, and Flickr all have terms of use which reserve the rights of their content, so just because the photo is widely distributed doesn’t not necessarily mean the photo is free for all.

    A similar lawsuit occurred a few years ago involving an Oregon gay couple that sued for their likeness being used in an anti-gay political campaign ad.  I’m not sure if the lawsuit specifically involved Fair Use, but the judge rejected the couple’s libel claim and affirmed the campaign’s right to use the couple’s likeness to address issues of public concern.

  9. I have been attempting to read James White’s article linked in this posting; it rather confirms my initial guess that he takes no prisoners!  But I must confess I found it rather hard going and did not get much further than the bit that says marriage being defined by God cannot be redefined by man. Does anyone know where God defines marriage?  I am most ashamed to have missed out on this (unless he just means the place where our Lord says man and wife make one flesh etc. – which is of couse relevant but hardly, I think, a definition).
    I also note that the original context of the photo as JW found it was an article on gay marriages which included the picture in question (among others) simply as an illustration of one.  I have had a look at that article, and it is not by Kozumplik and Webber, but a newspaper (Associated Press) report concentrating on aspects of the ceremony that by necessity deviate from tradition (e.g. what does the officiant say instead of “you may now kiss the bride”?) It seems designed to satisfy the curiosity of the public at this rather superficial level. But JW accuses the couple of deliberately (ab)using the “beautiful” child (how, I wonder, is her beauty relevant here?) to “promote” so-called marriages that are in reality celebrations of rebellion against God, etc. It occurs to me to wonder what actually counts as “promoting” homosexuality/h. marriages etc? That was a big issue in this country [UK] a while back when there was a lot of discussion about the repeal of a law (“clause 28”) that prohibited local authorities from “promoting” homosexuality; part of the reason why many people objected to the law was that it included little if any definition of “promotion”, so in principle people with nothing better to do could have brought vexatious litigation against councils who (for example) allowed the works of Oscar Wilde or E. M. Forster onto the shelves of public libraries. (NB I dare say the courts could have been counted to rule in favour of those safeguarded by literary canonisation, but what about less well-known authors? And what about leaflets available at the library desk giving details of charities or similar bodies offering help with sexual matters?  Besides, unless one’s cash flow is a good deal more robust than that of a UK local authority the threat of even unsuccessful litigation has a considerable deterrent effect.) There was also the problem of what the leaders of council-run youth groups or counselling services were and were not allowed to say to charges/clients who “came out” to themand asked for help – was it legal for them to say anything other than “that’s totally unacceptable”? And so on with ramifications in various areas of life. Returning to the photo issue, would it normally be considered as “promoting heterosexual marriage” to allow a photo of ones’ (regular) family to appear in an article describing ordinary weddings without venturing any opinion as to whether they are good thing or not? Would it count as using one’s children to promote one’s own ideas? Is it right that “promoting” should mean any mention or depiction of something in a context other than total condemnation?
    PS   By the way, I noticed at the foot of the article it said “All rights reserved. This material may not be published, broadcast, rewritten or redistributed.”

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