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

• Author: R. Terry Parker
• Position: R. 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 rtp@rathlaw.com.
• Pages: 40-43

©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

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Is the

Southern

District of

New York

Rewriting

Copyright’s

Fair Use

Statute? A View on

Magnum

Photos

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—