By Mickey H. Osterreicher(For purposes of the following discussion we will assume that all of the works in question are copyrighted.)
- According
to the U.S. Copyright Office: "One of the rights accorded to the owner
of copyright is the right to reproduce or to authorize others to
reproduce the work in copies or phonorecords... This right is subject
to certain limitations found in sections 107 through 118 of the
Copyright Act (title 17, U. S. Code)... One of the more important
limitations is the doctrine of 'fair use.'... Although fair use was not
mentioned in the previous copyright law, the doctrine has developed
through a substantial number of court decisions over the years. This
doctrine has been codified in section 107 of the copyright law."
- Section
107 contains a list of the various purposes for which the reproduction
of a particular work may be considered "fair." News reporting is
included in that list. Section 107 also sets out four (4) 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; amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and the effect of the
use upon the potential market for or value of the copyrighted work.
- A
court using the above factors in determining whether or not the use of
the JonBenet material (photos and video) was "fair" might be analyzed
in the following way: The purpose and character of the use appears to
be for news purposes and is more commercial in nature than it is
nonprofit. The photographs have been used in whole and the video
appears to be used in snippets. For argument's sake we should assume
that broadcasts of these tapes have shown a substantial portion in
relation to the copyrighted work. The effect of the unauthorized use of
the photos and tapes has dramatically affected the potential market and
value of the copyrighted work. Given the fact that these pictures were
first seen 10 years ago it certainly cannot be said that this is a
"new" story. Therefore I believe that the court would find that the use
of the material was not fair use.
The fact that the
source of the copyrighted material has been credited or acknowledged is
not a defense against copyright infringement. There is no substitute
for obtaining permission of the copyright holder or someone (as in this
case Zuma Press) who represents them.
There have also been a
number of questions raised about the material being in "the public
domain." Unless material is protected by intellectual property laws
(such as copyright, trademark or patent law) it is in the public
domain. That means anyone is free to use it without permission.
Generally most such works enter the public domain because of old age.
Included in this group would be any material published in the United
States before 1923. Other works remain in the public domain because
they were published before 1964 and the owners of the works did not
renew the copyright. A revision to the copyright law required renewal
of the copyright for any works published before 1978. Other material
falls into the public domain because it was published without copyright
notice, made necessary by another revision of the copyright law for
works published in the United States before March 1, 1989.
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Story behind the pictures: Q&A with Zuma director and more
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Lastly,
material can be in the public domain because its owner made a conscious
decision to place it there without any copyright protection. Using this
public domain analysis for the JonBenet material it would appear that
no public domain right exists since the works were created and
published after 1964 and were in fact copyrighted.
Another
question has come up regarding the distribution of some of the material
by law enforcement agencies at the time the crime was committed.
According to Scott Mc Kiernan of Zuma Press, "a detective had a small
photo of poor quality of JonBenet in a pink sweater with him at a press
conference. This photo was copied by many photojournalists. At no time
did the police ever hand out any photos (as for example O.J. Simpson's
mug shot)." Even had the police disseminated photos or video of
JonBenet it is still incumbent upon those news organizations wishing to
publish or broadcast such material to make a reasonable inquiry into
who, if anyone, owned the rights to the photo. An example of this would
be if someone offered to sell you the Brooklyn Bridge it would be
foolish to pay for it until you knew that person had the right to sell
it.
In order to avoid unnecessary litigation and the possible
payment of monetary damages it would be best that for anyone wishing to
publish or broadcast this (or any) material to contact the copyright
holder or someone representing the copyright holder and seek permission
for use before they do anything.
Attorney Mickey H.
Osterreicher, Esq., has been a member of the NPPA since 1972. He is the
chair of the NPPA Media Government Relations Committee and is also a
member of the New York State Bar Association Media Law Committee. He
has been a photojournalist for over thirty years in Buffalo, NY, where
he now practices law. 
