Is the Southern District of New York Rewriting Copyright's Fair Use Statute? A View on Magnum Photos

AuthorR. Terry Parker
PositionR. Terry Parker is of counsel at Rath, Young and Pignatelli, PC. He works out of their Boston, Massachusetts, and Concord, New Hampshire, offices, where he practices commercial litigation with a focus on intellectual property disputes. He can be reached at
©2019. Published in Landslide®, Vol. 11, No. 6, July/August 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Is the
District of
New York
Fair Use
Statute? A View on
By R. Terry Parker
Academics have long warned that courts often stray from
precedent when analyzing the four fair use factors pro-
vided by § 107 of the U.S. Copyright Act.1 As one
scholar put it, judges have a tendency to “stampede”
through the factors to arrive at a presupposed outcome.2 A recent
decision from the Southern District of New York, Magnum Pho-
tos International, Inc. v. Houk Gallery, Inc.,3 is particularly notable
for straying from precedent and allowing such stampeding. This
recent decision may provide online media companies with con-
dence to embrace business models that depend on infringement.
After all, the decision essentially guts the statute of its factors and
allows fair use solely on the basis of whether the infringer’s pur-
pose differs from that of the creator. However, such condence
should be tempered. This article argues that the Magnum Pho-
tos decision is misguided on a number of levels and should not be
seen as the new direction of fair use.
The Magnum Photos Decision
The facts of the case were simple and undisputed. The defen-
dant, an art gallery, staged two exhibitions of secondhand prints
by photographer Henri Cartier-Bresson. To promote the exhibi-
tions and the prints that were for sale, the gallery reproduced the
originals and displayed small, low-resolution copies (“thumb-
nails”) on its website. The copyright owner had no issues with
the secondhand sale of the prints, or their display at the gallery. It
instead objected to the use of the thumbnail copies displayed on
the gallery’s website. The plaintiff claimed that the posting of the
copyrighted images in thumbnail form on the gallery’s website
was infringing use. The gallery asserted fair use under § 107 and
moved for summary judgment. The court, viewing the evidence
in the light most favorable to the plaintiff, found for the gallery.
On the face of the decision, the court appears to evaluate
these statutory factors seriatim, walking through each in turn.
But before jumping into the court’s decision, we should rst
look at the statute, which provides:
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by repro-
duction in copies or phonorecords or by any other means
specied by that section, for purposes such as criticism, com-
ment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringe-
ment of copyright. In determining whether the use made of
a work in any particular case is a fair use the factors to be
considered shall include—

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT