What are the rules for using photos in a humorous news/parody site?

QUESTION:

We’re launching a website that will use photographs of celebrities, politicians and other public figures. The photographs will be used in parodies, satires and humorous videos of these public figures. (1) Are we allowed to do this without getting in trouble with the celebrities/politicians? (2) Are we allowed to use any photographs we find online (fair use) or do we have to license the photos from somewhere? (3) What’s the best place to get these photographs from? Can we just get the photos from news sites like CNN.com and FoxNews.com?

ANSWER:

Eric Ferraro

Eric Ferraro

by Eric Ferraro at Bullivant Houser Bailey PC

There unfortunately are no black and white “rules” regarding the use of third party intellectual property (IP) rights, online or elsewhere. Each proposed use must be analyzed on a case-by-case basis, and the analysis can be complicated.  That said, there are some general principles that can be helpful in considering whether a proposed use of IP might be allowable.  It is first important to recognize the various types of rights embodied in a photograph.  The photo itself is likely a copyrighted work belonging to a third party (usually the photographer, unless the photo is a “work for hire”). If the subject of the picture is a person, then the subject may also have legal rights at stake–for instance, the right of publicity and the right of privacy, to name two. Unauthorized use of a photo of a famous person could potentially violate the copyright of the photographer and the right of publicity or privacy of the subject.  The “fair use” doctrine allows the use of copyrighted material for commentary, criticism, news reporting, research, teaching and other purposes that are presumed to serve the general public interest.  Courts have been willing to extend the fair use protection to parodies in certain cases as well, but the scrutiny will be higher in those cases.  Generally speaking, using images of celebrities or other public figures in a news- or parody-oriented site is probably going to be okay, but there are no guarantees.  Celebrities and politicians are notorious for suing publications and web sites even when the use in that specific instance qualifies as fair use. So keep it on the humorous side and stay away from mean-spirited or humiliating commentary.  Regarding the specific pictures themselves, you should look for pictures in the public domain or source them from Getty Images or some other clearinghouse.

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Comments & Advice:
  1. Here are some comments, without getting into legalese!

    The issues to consider are copyright infringement and the misappropriation of right of publicity. Your business could be sued by the photographer of each of the photos you use for copyright infringement. You could also be sued by the celebrities for misappropriation of the right of publicity (http://topics.law.cornell.edu/wex/Publicity).

    In the scenario presented, you are using some of the language of fair use, i.e., parody etc., but the more of a parody something is, it can be argued that the more likely it could walk into a right of publicity issue.

    A reasonable answer to your question may be that you may have to license rights to the photos and the celebs depicted. It would be very risky to count on a fair use defense and the chance and expense of you being sued is high. You should license the rights from a photo stock agency like Corbis or Getty. Taking images from CNN or others' sites may be just …”ahh … to put it mildly … taking something without having the right to do so ☺.”

    I have also included links to a couple of websites that may be helpful.

    http://www.medialawyer.com/lec-copy.htm
    http://www.wipo.int/sme/en/documents/ip_photogr...

    Take perezhilton.com, for example, which has gained attention recently not just for real-time updates on some celebs but also for its run-in with copyright law. Among a host of others, it was sued for $7.6 million by a Hollywood photo agency, Universal Pictures, for posting a photo of Jennifer Aniston that was presumably taken from an edited portion of a recent film. Universal Pictures alleges that perezhilton.com failed to take down the photo after notice was served in accordance with the DMCA.

    SplashNewsOnline.com, another photo agency, also recently claimed that perezhilton.com refused to take down pictures from its website after receiving their DMCA notice.

    Prezhilton.com claims that the use of photos on perezhilton.com is protected under copyright fair use as it is posted for the purpose of commentary and is not “selling” the photos. It is also argued that the photos are “transformed” (although they seem to be “derivative” rather than “transformative”) by showing only portions of them and then at lower resolution. It also appears that the “parodies” involves that of the celebs rather than their images.

    It is noteworthy to state that perezhilton.com enjoys some level of commercial success and is reported that it receives 2 million unique visitor hits per month and charges a rate of over $9,000/week for ad space.

    Soody Tronson
    http://www.foundersspace.com/featured/soody-tro...

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