New York Times Sues Publisher Over War Photos, Fair Use At Issue

In a case that raises questions about copyright and free expression, the New York Times is suing a publisher who used thumbnail reproductions of the newspaper’s front pages in a book that attacks the Times war coverage.

In a complaint filed in December in New York federal court, the New York Times (NYT) claims publishing house, Powerhouse Books, and its CEO Daniel Powers violated copyright laws by reproducing 64 miniature images of Times’ front pages that depict war images.

The book is titled War is Beautiful, and is written by author David Shields. It surveys a decade of war photographs that appeared on the front of the Times, and argues the paper glamorizes war and manipulates readers by showing beautiful, artistic images of conflict.

The minuscule images of the Times covers appear on the book’s endpapers, serving as a decorative embellishment inside the covers. And while the lawsuit says Powers paid to license larger images that appear in the book, it also claims he did not obtain a license for the 64 thumbnails, and adds the publisher has since refused to pay invoices sent by the Times.

In response to the alleged infringement, the Times is seeking statutory damages, which range from $750 to $150,000 per infringement, plus punitive damages against Powers.

Despite the accusations, however, it appears the Times’ case may be just bluster. In a stinging rebuke, Georgetown law professor Rebecca Tushnet described the case as a “hissy fit” and observed that the thumbnails appear to be a clear-cut case of fair use that require no license.

In a blog post, Tushnet pointed to a famous 2006 copyright ruling involving a publisher who produced thumbnail images of Grateful Dead posters. In that case, the New York-based Second Circuit Court of Appeals used a four-part test to conclude the thumbnail images were fair use, in part because they were transformative and posed no marketing threat to the copyright owner.

Others, meanwhile, have also suggested the case is a loser for the Times, and said it runs counter to the paper’s long-time advocacy for free speech.

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In an email comment, Eileen Murphy, a spokesperson for the Times, refuted the criticism, and noted Powerhouse is now suing Shields and his lawyer.

First of all, we licensed all of the photos within the book to Powerhouse (with the exception of the 64 Pages Ones), which allowed them to freely express their opinions on our war photography. How can our willingness to allow them to use our photos in this manner possibly be read as an attempt to chill journalistic free expression?
Second, We have a strong record of supporting fair use when it’s warranted. In this instance, the front pages were used for decorative effect, not for any transformative purpose, which undercuts any claim of fair use.
And finally, it’s worth noting that Powerhouse has now sued the author and his lawyer alleging that they misled the publisher into thinking the use of the front pages was fair use.

But Power, the CEO of the publishing company, suggested that the Times is behaving vindictively. In an email, he said:

“Their licensing department sent us an invoice for $19k, and we laughed, and then got served. They know it’s fair use, but they want to extract a pound of flesh from a small indie publisher for not doing what they wanted us to do. They just want us to spend a lot of money defending ourselves as a passive manner of punishment.”

Shields did not immediately reply to a request for comment.

For the New York Times, the final irony of the lawsuit is that it may not only prove fruitless, but result in additional publicity for War is Beautiful in the first place.

[This story was updated at 9:20 pm ET with Power’s comment]. Here’s a copy of the complaint:

NYT vs Power