[A2k] Brangelina pics were 'fair use'

[Michelle Childs]

<snip>"In English law it would be a question of whether publishing the
photo on the web as part of the magazine cover was 'fair dealing' with the
copyright in the photo and it's clear to me that you couldn't publish the
photo under fair dealing in the UK," said Kim Walker, media and
intellectual property partner with Pinsent Masons, the law firm behind
OUT-LAW.COM. "The defence of fair dealing for the purpose of reporting
current events does not apply to photographs."

"In the US, though, the 'fair use' exemption is looser and wider and tends
to take more account of public interest considerations when assessing
fairness".




http://www.theregister.co.uk/2006/06/12/brangelina_pic_leak/
Brangelina pics were 'fair use'
Gossip website denies copyright infringement
By OUT-LAW.COMPublished Monday 12th June 2006 09:59

 A gossip website which still carries disputed pictures of Angelina Jolie
and Brad Pitt's baby says that its publishing of the pictures constitutes
'fair use'.

Time Inc, publishers of People magazine, and Getty Images, which took the
pictures, pursued websites all over the world in attempts to stop the
publication of the pictures before yesterday's publication in magazines.
Magazines are thought to have paid between $5m and $7m in total for rights
to publish the pictures.

Gawker.com, amongst others, published a shot of the cover of Hello
magazine, which bought first UK rights to the pictures. Unlike other
sites, though, Gawker refused to back down when contacted by Time, whose
People magazine had bought the US rights. Gawker is a New York-based site
which pokes fun at the media and celebrity industries.

"We stand by our belief that the image, which we have never displayed
outside the context of Hello's treatment of it, nor at anything larger
than thumbnail size, is an important news media story that is within our
rights to cover as part of our reporting on the celebrity media industry,"
Gawker managing editor Lockhart Steele wrote to Nick Jollymore, deputy
general counsel of Time Inc.

Gawker has published its correspondence with Time Inc relating to the case
on its website. A spokeswoman for Time confirmed that the published
correspondence is accurate.

"We're firm in our right to report on Hello's treatment of the story, one
of the biggest celebrity media news stories of the year," wrote Steele.

Jollymore replied: "With all respect, this is not 'fair use' but wilful
copyright infringement in an attempt to use a valuable photograph to
enhance your site even though you have obtained no rights to do so."

The Time legal team said that it had co-ordinated its strategy with Hello
and that neither company would pursue the case further if sites took down
the images. "If they do not, we are co-ordinating legal action," Jollymore
said.

He warned that the law in England, where Hello is published, was even more
restrictive than in the US. Gawker eventually switched the image from
being a picture of the Hello cover to being a picture of the People cover.

"In English law it would be a question of whether publishing the photo on
the web as part of the magazine cover was 'fair dealing' with the
copyright in the photo and it's clear to me that you couldn't publish the
photo under fair dealing in the UK," said Kim Walker, media and
intellectual property partner with Pinsent Masons, the law firm behind
OUT-LAW.COM. "The defence of fair dealing for the purpose of reporting
current events does not apply to photographs."

"In the US, though, the 'fair use' exemption is looser and wider and tends
to take more account of public interest considerations when assessing
fairness".

Gawker later published images reproduced from the actual photo shoot from
inside the magazine, which it subsequently took down.

Getty Images spokeswoman Alison Crombie said the initial image was
probably taken on a mobile telephone at some point in the printing or
distribution of Hello magazine in the UK. "I don't think this will really
affect the value of the pictures," she said.

Getty Images is agent for the rights sales, and a spokeswoman said neither
Getty nor the celebrity parents would receive any money. "There is no
money in it for us, it will all go to the charity they choose."

Copyright =A9 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.


--
Michelle Childs -Head of European Affairs
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