In something of a role reversal, a (presumably) left-leaning history professor is arguing that his rightwing critics have violated copyright by lifting a photo of the professor off the internet and using it in their highly critical publication. [Case: Beinin v. Ctr. for the Study of Popular Culture (2007)]
The Center for the Study of Popular Culture (CSPC) describes itself as "an organization dedicated to defending the cultural foundations of a free society." [It also modestly describes its founder as "brilliant and articulate."] [See also People for the American Way and Wikipedia for alternate descriptions.]
In 2005, as part of its defense of "the cultural foundations of freedom," the Center published a pamphlet, "Campus Support for Terrorism," which is essentially a diatribe against various academics and academic institutions more generally – apparently "totalitarianism finds its most dependable allies on college faculties" and "a significant segment of academia had [post 9-11] formed an unholy alliance with terrorists and their enablers…"
Joel Beinin is a professor of Middle Eastern studies at Stanford University. Along with a number of other academics, Beinin is expressly criticized in the Center's pamphlet as one of "Terror's Faculty Sympathizers." [Unfortunately the online introduction does not include the reference to Beinin.]
The cover of the Campus Support for Terrorism pamphlet cover features the photographs of Beinin and three other individuals named in the articles. The Center obtained Beinin's photograph from the Stanford University website, apparently without the permission of Standford, Beinin or the original photographer.
The fair use issue in this case is whether the Defendant can compel third party discovery against the original photographer in order to establish its fair use defense to copyright infringement. In a decision dated June 20, 2007, United States District Judge James Ware held that it could not. (Technically, the court overruled the defendant's objections to the magistrate Judge's order denying the defendant's motions to compel.)
The photographer, Theodore Mock has been the sole proprietor of Mock Photography in Palo Alto since 1969. [I had my photo taken there back in 2001 when I worked for a Palo Alto based law firm.]
Under the old Copyright Act (1909), Beinin would not have needed an assignment because the photograph was a commissioned work and it would be presumed that Beinin, not the photographer was the copyright owner. However, the Copyright Act of 1976 deals with commissioned works differently and specifies certain classes of work as a "work made for hire" if it is prepared by one person upon the special order or commission of another. Portraits are not included in the categories of commissioned works that are equated to works made for hire under the 1976 Act.
So, as the photographer, Mock is the author of Beinin's photo, however, after the release of the Campus Support for Terrorism pamphlet, Mock agreed to assign his copyright to Beinin.
So why is Mock still involved in the case? As part of its fair use defense to copyright infringement, the CSPC made a broad document request which included all documents from Mock concerning his and granting of any rights he had ever made in relation to photo! The CSPC also sought all documents concerning "any revenues, money, or other compensation received by [Mock] in return for any use of a photograph." Mock understandably objected on the grounds that he would have to review over 2,500 unique customer files generated over the last 38 years.
The court was sympathetic to the notion that such records might be relevant to the CSPC's fair use defense. The court agreed that "evidence of past licensing of photographs taken by Mock could be some indicator of the market value of the disputed photograph at the time of the alleged infringement" and thus relevant to the fourth fair use factor – whether the defendant's use of the photograph affected the potential market and value of the disputed photograph.
Nonetheless, because of the disproportionate burden on Mock, the court refused to allow the non-party subpoena, at least until the plaintiff determines the amount of damages he intends to claim.
Stepping back from the discovery dispute, this case raises interesting questions in relation to copyright and free speech. This case has some similarity to the 1966 case of Rosemont Enterprises v. Random House. In that case the 2nd Circuit rejected Howard Hughes' attempt to suppress a forthcoming biography by acquiring the copyrights to the magazine articles from which the biography was derived. The court reversed the district court's grant of a preliminary injunction and held that Hughes' actions amounted to misuse of copyright. However, it might be that Beinin is not trying to entirely suppress CSPC's criticism, but simply trying to get his picture off the front cover of a pamphlet he would rather not be associated with.
The case is ongoing.