Shortly after construction began on a new high school in Sullivan County, Tennessee, a controversy erupted over whether the proposed site was pock-marked by sinkholes. Plaintiff, a whole-hearted believer (apparently) that this was the case, sought to prove it by taking drone photos of the construction site. He enlarged one of the photos, annotated it with text that identified alleged anomalies that he believed indicated the presence of a whole slew of sinkholes, and gave the photo to a like-minded member of the Board of Education ("BoE") who, in a sink or swim moment, used it as an exhibit at a BoE meeting where the issue was debated. Plaintiff also distributed about ten copies of the photo at the meeting, which were passed around by a "packed house" of attendees (some of whom were opponents of the new school). Plaintiff later posted the photo, along with other drone footage, on his Facebook page, which received a few thousand views.
Although plaintiff was not alone in his belief that his photo proved the existence of the sinkholes - a picture is worth 1000 words? - the engineer for the project disagreed - looks can be deceiving! - and explained at the meeting that the geologic formations in the photo were not sinkholes but, instead, were blasting pits left behind after the worksite was leveled with dynamite. In other words, the picture amounted to a whole lot of nothing and certainly was not the ace in the hole that the project's opponents had hoped it would be. The engineer's testimony essentially sank any chance that the project's foes would carry the day. Construction proceeded, and the school is scheduled to open in August, 2021.
Shortly after the BoE meeting, The Kingsport Times News (the defendant) ran a story that covered the meeting under the headline: "Engineer explains origin of 'sinkholes' on West Ridge High site." The plaintiff's photo was included, without his permission, in the article. Here is the photo, along with the caption used by the defendant:
Plaintiff sued for copyright infringement, and the paper moved for summary judgment on fair use grounds. The district court in Eastern District of Tennessee granted the motion. Here is a brief summary of the court's run-down of the statutory factors.
The Purpose and Character of the Use.
The court concluded that the defendant's use of the photo was transformative and that the defendant had not (as plaintiff argued) published the photo merely to illustrate a news story. Although defendant had not altered the plaintiff’s photograph, its use differed from plaintiff's. Plaintiff had created the photo to document the alleged presence of sinkholes; defendant used the photo to report on an issue of public concern, i.e., the controversy generated by the use of the very same photo at the BoE meeting. "It was the Photograph that the engineer rebutted [during the BoE meeting], and it was that rebuttal that Defendant’s news story was about." Indeed, defendant used the photo within an article that contradicted (and critiqued) the view of plaintiff and his allies regarding what the photo actually showed. ("Defendant was going to the heart of the controversy with its commentary.") Finally, any commercial nature of the defendant's use (the defendant had received a whopping $15 in ad revenue generated by views of the article) was not dispositive due to the transformative nature of the defendant's use.
Nature of the Copyrighted Work.
The second factor favored a finding of fair use because the photograph was more factual than creative in nature, and the photograph had been published previously. However, the court noted (as courts often do) that the second factor rarely is dispositive.
Amount and Substantiality of the Portion Used.
The defendant used the entirety of the plaintiff's photo. However, the use of the complete photo "was reasonable and consistent with its purpose of providing another explanation for the anomalies shown in the Photograph."
Effect of the Use Upon the Market for or Value of the Original. whole lot of nothing. Moreover, "the purpose to which Defendant used the Photograph differed than that of Plaintiff, reducing the likelihood that it would be a satisfactory substitute for the original."
Plaintiff argued that the defendant’s use of his photo supplanted the market for licensing the image commercially. The court was not convinced, since the plaintiff had failed to show "there is even a potential market for a drone image of a high school construction site in Sullivan County, Tennessee that attempts to show the existence of potential sinkholes." Plaintiff admitted that he had not earned a dime from the photograph and that his one attempt to license it had failed, netting him a
The court's summary of its conclusions:
"On balance, Defendant’s use of Plaintiff’s Photograph provided a benefit to the community as it used the Photograph in a story about a topic of public concern. Its use was transformative because it provided a different interpretation of the Photograph than Plaintiff’s purpose, which was to show the existence of sinkholes at the construction site. The Photograph was informative and had already been published when Defendant republished it. That Defendant used the Photograph in its entirety does not weigh against it in this context. Finally, Defendant’s use did not have any adverse effect on the market for Plaintiff’s Photograph. In consideration of these statutory factors, the Court holds that as a matter of law Defendant’s use of Plaintiff’s Photograph was fair."'
19-CV-00092-DCLC, 2020 WL 7348157 (E.D. Tenn. Dec. 14, 2020).