Reprint of Photo in Book Review Considered Fair Use

By Joel Hecker, Esq.
An interesting issue concerning the Fair Use doctrine recently arose in connection with the reprinting of a photograph which appeared in a book, as part of a book review in a local newspaper.
Photographer Christopher Harris, the creator of a photographic portrait of Walter Percy, granted permission to have his photograph reprinted in the book, “The Life you save may be your Own: An American Pilgrimage,”by author Paul Elie. The San Jose Mercury News, a San Jose newspaper, published a review of this book in April 2003. As part of the review, the paper used four photographs from the book, including the one by Harris.
Harris commenced litigation for copyright infringement. The primary defense raised by the newspaper, was of course, that such use was a “fair use” under the Copyright Act since the photo was reproduced for the purpose of criticism or comment in connection with a legitimate newsworthy event, the review of a book.
The jury concluded after a trial, that the newspaper had prevailed, by a preponderance of the evidence, in the analysis of the four factors considered as part of the “fair use” defense. These factors are the purpose and character of the use (and in particular whether there is any transformative nature of the “infringing” work), the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the market for or value of the original. In effect, this use in connection with a legitimate book review of a legitimate book was determined to be a fair use of the image and therefore did not constitute copyright infringement.
It has been undisputed that use of a photograph created by the same author who wrote the book which is the subject of a legitimate book review, would constitute a fair use, since the book and photograph are one and the same for purposes of review. In the Harris case, the book reviewed was separate and apart from the photograph, which was licensed for a particular purpose. In other words, the book review was not for purposes of critiquing the photograph, but of the book itself. One wonders whether such a distinction might have been made in this situation insofar as the fair use analysis is concerned.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.