Protest photo use protected by US copyright law, says court

Former General Electric (GE) employee Robert Delsman has created blogs and printed materials protesting at his treatment by Sedgwick Claims Management Services, a company hired by GE to provide some services related to insurance.

As well as blogs, Delsman created posters and postcards depicting Sedgwick chief executive David North and chief operating officer Paul Posey. These were publicity pictures created and circulated by Sedgwick.

Sedgwick's lawsuit claimed that as well as producing 'wanted' posters emulating wild west notices Delsman 'morphed' the photographs into images of Adolf Hitler and Heinrich Himler and sent them to Sedgwick employees.

Judge Saundra B Armstrong of the US District Court for the Northern District of California said that because Delsman represented himself she should take a liberal view of his case and forgive or correct procedural mistakes.

She did this and conducted the hearing as one which applied for the case's dismissal on the grounds that the material was exempted from copyright law under its provisions for fair use. Fair use exceptions exist for purposes such as criticism, comment, news reporting and research.

Four factors are to be taken into account when considering fair use, the court said. These are the purpose and character of the use; the nature of the work of the person making the infringement claim; the amount of work used; and the effect of that use on the potential market.

Judge Armstrong said that two of the factors were neutral and two were in favour of Delsman. The most crucial was the purpose and character of the use of the images, she said.

“Sedgwick argues that there can be no fair use where, as here, [Delsman] did not alter the photographs of North and Posey,” she wrote in her judgment. "This argument is misplaced. The question of fair use does not turn simply on whether the photographs themselves were unaltered. Rather…the salient inquiry is whether the use of the photos, in the specific context used, was transformative."

"Here, there can be no legitimate dispute that [Delsman's] use of North and Posey's photographs was transformative," she wrote. "Both images originally were used by [them] for promotional reasons. [Delsman], however, used the photographs as a vehicle for criticising [Sedgwick]."

"When viewed in context, it is clear that [Delsman] used North and Posey's photographs for a fundamentally different purpose than they were originally intended by transforming them into a vehicle for publicising and criticising Sedgwick's alleged business practices," wrote Judge Armstrong. "In view of the above, the Court finds that the first fair use factor weighs strongly in favor of fair use."

The Court granted the motion to dismiss the action.

In the UK copyright law has exceptions for fair dealing, not fair use. While many of the grounds are the same as in the US, transformative use is not among them. The Gowers Review of Intellectual Property in 2006 recommended that the UK introduce exceptions from copyright law for transformative use but that change has not yet been made.

Editor’s note: Thank you to blogger Eric Goldman for bringing this case to our attention.