The nature of the copyrighted work factor analyzes whether or not the copyrighted work is fact or fiction (factual versus creative in regard to photographs) or well-known versus obscure or unpublished. To understand this factor you must understand two things: 1) copyright law was enacted to protect creative works, and 2) facts by themselves cannot be copyrighted. Therefore, works that are completely imaginary should receive more protection than works based in fact, like a medical book, and this concept extends to Fair Use cases. If your new work borrows from factual sources, you are more likely to successfully defend yourself from a copyright infringement lawsuit using the Fair Use statute than you would had you used fictional sources.

But what if you are writing a new biography on J. R. Tolkien? Certainly you’ll need some excerpts from his fictional books. And what about parodies, critiques, and teaching: creative processes specifically mentioned in §107? A photography teacher is bound to use a creative photograph to demonstrate a point. An art or movie critic is always critiquing creative works. Does this mean the copyright holder of a creative work will always win this factor? Technically yes, but as we saw in the 2 Live Crew case, they used copyrighted material from a purely creative song and still won the case using the Fair Use defense. So what’s the deal? Remember that the second factor is only one of four factors used to analyze a Fair Use case. While the copyright holder of a purely creative work may win this factor almost by default, very little, if any, weight may be given to it when it comes to ruling on Fair Use. Per Supreme Court Justice Souter in regard to this factor in the 2 Live Crew case:

We agree with both the District Court and the Court of Appeals that the Orbison original’s creative expression for public dissemination falls within the core of the copyright’s protective purposes. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.

With a book, it is easy to distinguish fiction from non-fiction, but with a photograph the line is somewhat blurred because all photos are factual—there is no way to take a photo of something that does not exist. Therefore, “fact versus fiction” becomes “factual versus creative.” A “factual” photo is generally considered to be one that documents some type of real-life, often newsworthy event that may happen so suddenly that the photographer has no time for creative thought and simply snaps a photo in reaction to the situation: a celebrity appearing suddenly from a limousine; a politician giving a speech; a crime scene. A “creative” photo, on the other hand, would tend not to be of a real-life or newsworthy event, but instead one in which the photographer has time to think about the composition and other creative elements involved in taking a photograph. It is possible to present an argument either way for many photographs. This is why discussing the outcome of Fair Use cases is purely speculative, and why trying them in court is quite risky.

In Fitzgerald v. CBS Broadcasting, photographer Chris Fitzgerald just happened to be at the right place at the right time when he photographed the arrest of gangster Stephen Flemmi. CBS used the photo without permission in its 60 Minutes news show, so Fitzgerald filed a lawsuit. CBS used the Fair Use defense, citing that it is a news agency and that news reporting is one of the categories mentioned in §107, plus the photo’s use in its factual news show helped create an informative show that benefited the public. CBS lost the case, but as far as the nature of the copyrighted work factor went, it was ruled in favor of CBS because Fitzgerald didn’t do anything more than snap a photo of an event as it suddenly occurred. He tried to argue that there was some creative process involved, but nobody believed him.

The argument of “known versus unknown” or “published versus unpublished” can be equally important in determining the nature of the work. If you are using a copyrighted photograph for a satirical work, whether it is factual or creative is irrelevant. It stands to reason that being well known is much more important, otherwise nobody is going to understand the humor. Thus, a famous photo is more game for Fair Use than a vacation photo taken by an anonymous person, unless the artist is parodying of the typical American vacation photo.

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