Facts: Conservative activist puts together a pamphlet alleging that a group of liberal professors at a particular university are “supporters of terrorism,” and puts a copyrighted picture of one of the professors on the cover. The professor sues the activist for copyright infringement for the use of his copyrighted picture.
Fair use, I assume? I would imagine this would be an easy case under the four factors of Section 107.
An image of the pamphlet is here; a story about the lawsuit is here.
Hat tip: the VC.
I agree that fair use probably defeats any copyright claims here, particularly absent a showing that the copyrighted photo was marketed/marketable.
Rights of publicity, however, could provide a cause of action since this professor’s likeness is being exploited. Publiciy rights vary from state to state, but some of the more protective states like California would allow recovery under publicity rights infringement if the use is not “transformative” or otherwise protected by the first amendment (used for news, political, or ID purposes). Although it would turn on the specific purpose of the photo on the pamphlet, the use of the professor’s likeness seems to be for political/newsworthy description and not as a pure endorsement/advancement of activist’s cause or any commercial activity, so publicity might not help him.
Also, he might have a commonlaw tort action for false light, invasion of privacy, or disrepute. These vary wildly and require showings of maliciousness and/or misportrayal, which doesn’t seem present here.
It’s interesting that Beinin believes, if the newspaper article is accurate, that the copyright claim is “a more clear-cut legal challenge” than the defamation claim he chose not to bring; the typical complaint about the fair use doctrine is exactly the opposite.