Ashley Dupre and the Muddled Mess of Fair Use

The issue of fair use of copyrighted photographs has surfaced in the Eliot Spitzer scandal, with Ashley Dupre’s lawyer blasting media outlets for publishing pics pulled from the call girl’s MySpace page. High-profile attorney Don Buchwald said he would take steps “to protect Ms. Dupre from any unwarranted exploitation of her name, picture, voice or likeness for purposes of profit.”

Media outlets have responded that the photos are news and thus pass the test for fair use. As the AP said in defending its decision to run the pics:

The Associated Press discussed the photos obtained from the MySpace page in great detail and found that they were newsworthy. We distributed the photos that were relevant to the story. Those photos did not show nudity, nor were they explicit.

Buchwald, however, questioned how newsworthy the photos really were:

While the circumstances surrounding Governor Spitzer’s resignation are newsworthy, some publications, in violation of journalistic norms, have used the occasion of Gov. Spitzer’s political misfortunes as an excuse to exploit Ms. Dupre’s persona for commercial purposes.

Photo District News stepped up to bolster Buchwald’s argument, concluding that the fair use argument is a “thin one” and finding some media outlets that refused to publish the images. Maybe, if I consulted enough law books, I’d agree with them.

But let’s be real here: The $4,000-per-hour genie is out of the bottle. Buchwald, Dupre and the photographer(s) who took the pics are out of luck. That’s simply one of the risks when images are posted on the Web.

By contrast, photographer Wesley Mann is sitting pretty right now. Mann did a topless shoot with Dupre and has sold the photos to the New York Post — obviously, for big bucks. Mann must be counting his blessings that those pics weren’t posted on Dupre’s Web site — or his own, for that matter. Otherwise, they surely would have been snatched on the grounds of fair use, too.

But to me, that’s not the most interesting issue that’s arisen out of the media’s latest fair use dust-up. I’m more intrigued by the the apparent hypocrisy of media outlets — particularly the AP — in the interpretation of fair use with respect to bloggers.

As Ken Shepherd at NewsBusters points out, on the same day the Spitzer scandal broke, the blog Confederate Yankee published an e-mail from the AP explaining the wire’s broad policy against bloggers using AP photos — including under circumstances that a reasonable person might consider fair use.

The AP was responding to controversy created when it threatened legal action against Brian Ledbetter’s Snapped Shot, a photojournalism criticism blog, for running AP photos without permission. Ledbetter was forced to take down his site temporarily to figure out his next move. He explained:

I’m currently in the process of going through and reviewing my archive, separating the photo-criticism from the general tomfoolery in my content as a result of the AP’s warning, which is a long and painstaking … task, but one that will hopefully allow me to bring back most (if not all) of the AP content that I’ve found specific problems with.

I can’t recommend enough that all bloggers need to read Gabriel Malor’s excellent explanation of “Fair Use” in the blogosphere—While nothing’s guaranteed to keep us out of the courtroom, following his advice would certainly help towards that end.

Would it be unfair to surmise that the AP went after Ledbetter (from among all the other bloggers running snatched pics out there) because it didn’t like the content of his criticism? We’ll never know.

But one thing’s clear: Fair use is a more muddled mess than ever.

[tags]Ashley Dupre, Eliot Spitzer, fair use, photography law, copyright, photojournalism [/tags]

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