Companies often claim using a photograph without permission is legal so long as the photo is not sufficiently unique or if they modify the work enough to pass the “fair use” test. A four-factor test for determining fair use, but how exactly is it applied?
Photographer Sean Heavey recently encountered a similar argument after Netflix used his photo in the television series, “Stranger Things.” We decided to analyze Netflix’s use of the work under US law to answer this common question once and for all. Here’s our take.
Determining fair use: The Four-Part Test
There is no clear-cut rule for determining fair use in the United States. Rather, American courts weigh a set of four factors established by the Supreme Court in 1994: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.
It’s important to keep in mind that only courts can make a determination of fair use after-the-fact. Judges may also look at other information and factors beyond the four-part test. Sometimes the results can be unpredictable, and a finding of fair use in one situation may not lead to a similar finding in another.
Finally, while each individual test is important, courts weigh them together when making an assessment. Appearing to pass any single test is not a “get out of jail free card” for infringers. With this in mind, here’s our fair use analysis of the image under the four-factor test.
The purpose and character of the use
This factor examines the way in which a work was used and who used it. Fair use law favors non-profit educational use over direct commercial use. Courts are also more likely to rule highly transformative uses as fair use. Use in parody, criticism and news reporting, and research is also more likely to be allowed.
Netflix heavily transformed Harvey’s photo into a new work. It added substantial elements to the foreground to create an entirely new scene. The addition of text is relatively minor, however, and a substantial portion of the original photo is still visible. Regardless, Netflix would be correct to say that it heavily transformed Sean’s photo into something new.
Looking at the purpose of the use, Netflix’s intent was to create a piece of concept art for a new show. Netflix later published this art as a still in “Beyond Stranger Things,” a special episode depicting the making of the show. Netflix is a for-profit company, and producing shows is one of its primary business activities.
Use of a work as concept art leans more toward fair use than publishing the work in an advertisement or on a DVD cover. But Netflix broadcast the work as part of the show. It profited directly from this through subscription fees. Furthermore, we assume that Netflix paid other creators (directors, actors, writers, etc.) for their contributions.
Despite the transformations Netflix made to the work, its for-profit use of the photo in a commercial production weighs heavily against them it.
The nature of the copyrighted work
This element looks at the type of work in question and is mostly applicable to works involving public interest, first publication, and written works. According to Columbia University, courts are more protective of creative works than non-fiction works. Whether or not a work has been published also plays a role.
Since copyright applies to all works regardless of artistic merit, the argument that Sean’s photo depicts a cloud formation or that it looks similar to other tornado photos holds no weight. Whereas it’s easy to take a portion of words from a written work, visual expressions such as paintings and sculptures are not so readily broken apart and when used as a whole, are less likely to be considered fair use.
The amount and substantiality of the portion taken
Netflix used a substantial portion of Sean’s photograph, but not the entire work. The less of a work someone uses, the more likely a court is to find fair use. Courts also look to see if the substantial essence of the heart of a work was used. The tornado clouds in the photo are clearly the most important element. Without them, the photo would be nothing. The clouds also make up the most substantial element of Netflix’s transformed work.
Had Netflix repurposed an inconsequential portion of the photo, such as a tree in the foreground or a small section of clouds, this would lean heavily toward fair use. Looking at both Sean’s photo and Netflix’s work, however, it’s clear that although Netflix did not use the entire photo, they nevertheless used the most important part. This weighs heavily against Netflix.
The Effect of the Use Upon the Potential Market
Creatives rely on their work for a living. This is something both courts and fair use law acknowledge. Uses of a work that limit the economic opportunities of the artist are less likely to be considered fair use. Repurposing a creative work that is already available for purchase or licensing also weighs against a finding of fair use.
The wide use of the photo by Netflix will limit Sean’s future ability to license the work. Entertainment companies won’t want to license something already seen by millions on Netflix. Other corporate users may also feel the same way. In the case of commercial or fine art photography, there is a direct link between the use of a photograph and payment to the photographer. It would have been easy enough for Netflix to contact Sean ahead of time to arrange for a license. These factors favor Sean heavily.
In the case of Sean Heavey’s tornado photograph, the fact Netflix used the most important parts of Sean’s photographs in a commercial production and the negative impact this will have on the market for the photo weighs heavily against it. The company also could have easily contacted Sean for a license or licensed another photograph in its place.
Netflix also has substantial legal resources at its disposal and works with intellectual property on a daily basis. They’re in the strongest possible position to understand copyright law and apply it to their business practices. Finally, why should everyone else who contributed to the show and its promotion be paid but not the photographer?
Infringers often claim that they modified a work enough to qualify for fair use when approached regarding image theft. This often occurs alongside claims that an image is not very important or unique. Photographers should not let either claim dissuade them from taking action when their work is stolen.
An expert opinion
We reached out to Pixsy expert legal partner David Deal, who said -
"All fair use considerations are not created equal. At its core, Netflix’s use of the photograph is aesthetic, not satirical or political, and therefore not transformative. Nothing else really matters. Although they added other visual elements to the image, Netflix chose the photograph because it is dramatic and helps illustrate the dark theme of the series. Rather than hire an illustrator or properly license the photograph, Netflix simply copied the most impactful part of it and incorporated that into their commercial product. This is not fair use"
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