The New York Times is suing independent publisher PowerHouse Books and its CEO, Daniel Power, over a series of images appearing in a book that’s highly critical of the Gray Lady’s coverage of war.
In the book, titled War Is Beautiful: The New York Times Pictorial Guide to the Glamour of Armed Conflict*, David Shields analyzes over a decade’s worth of front-page war photos in the paper and concludes that “these pictures published by the Times are, above all, tasteful,” as he wrote recently in Lit Hub. “Rather than attempting to document ragged reality, these photos jam reality into pre-made boxes—the consoling conventions of the Western pictorial tradition.”
War Is Beautiful includes numerous photos that originally appeared in the Times; PowerHouse licensed all of them for reproduction. What it didn’t license, and what the Times is suing over, is the book’s endpaper, which features 64 miniature images of different Times front pages tiled in four rows. In the lawsuit, the Times calls itself “the sole owner of the copyrights of the 64 Front Pages” and alleges that the use of them in the book without license is infringement. Before suing, the Times sent PowerHouse an invoice for $19,900 — the cost to license the front-page images in question — but the book publisher refused to pay.
That’s because PowerHouse contends the employment of the images in the endpaper qualifies as fair use. “One of Shields’s assertions is that, besides aestheticizing war in general, the Times subtly (or not so in some cases) and deftly underpins US military policy by presenting images that undergird the military objectives of the day,” Daniel Power told Hyperallergic. “So it was necessary, either as main art on the page or in sum at some point in the book, to show what news was transpiring that day when the image appeared on page A1. We decided to license the photos to make a proper photography book (and compensate license holders for their work), but showing the front page in general should be fair use as it contextualizes the events of the day with the image that was featured.”
The Times does not agree. In a general statement to the press, it argued that “the front pages were used for decorative effect, not for any transformative purpose, which undercuts any claim of fair use.” When pressed on why the paper is bothering with the lawsuit, given that PowerHouse licensed all of the other images in the book, a Times spokesperson elaborated:
We share our licensing fees with our photographers, and we have done so with this book. Powerhouse’s failure to license the front pages not only was a misuse of our intellectual property but deprived the photographers of their share of the licensing fees. We think creators, whether they are newspapers or book publishers or freelance photographers, are entitled to be paid for their work.
But Power thinks the paper has other motives. He says the Times initially demanded that PowerHouse change the subtitle of War Is Beautiful, “because they thought we were using their name to sell the book. They were demanding we change the subtitle and listings everywhere after the book was printed, we declined, then they bought the book and shifted focus real fast. It’s a pure nuisance suit just to force us to spend money defending ourselves. Just prickishness really.”
In response to the lawsuit, Power and his company have filed a third-party complaint against Shields and the law firm Donaldson Callif, which advised on the fair use issue during the creation of the book. “[O]n or about July 17, 2015 Donaldson issued an opinion letter regarding the use of the Thumbnail Collage in War is Beautiful,” the complaint says. “The Opinion Letter stated that such use was ‘highly transformative in that it is being used to graphically portray the intense imagery in which the New York Times presents war. For these reasons, it our [sic] opinion the Quotations, Captions and Front Pages are all used pursuant to fair use.'” The complaint requests monetary relief from Shields and Donaldson Califf if the Times wins its case.
In both its general statement and comments to Hyperallergic, the Times intimated that the third-party complaint evidences PowerHouse’s uncertainty regarding fair use in this case. Power, however, countered this, saying the complaint joins Shields and his lawyers to the suit for practical purposes. “We regularly have authors indemnify us, and given he gave us two legal opinions saying we’re good to go, it makes sense to have them take the lead.” Hyperallergic reached out to Shields for comment, but he did not respond.
Onlooking lawyers who’ve weighed in thus far are unconvinced of the Times’s case. In a blog post, Georgetown law professor Rebecca Tushnet cited as clear precedent Bill Graham Archives v. Dorling Kindersley, a lawsuit over a series of Grateful Dead poster and ticket images that were reproduced in a book without permission. And art lawyer Sergio Muñoz Sarmiento called PowerHouse’s use of the front page images “a textbook case of fair use (pun intended).
“It appears the New York Times is unhappy with the author’s criticism, so they are employing copyright to chill speech,” he told Hyperallergic. “What’s being sold here is the book, which uses the Times‘ front pages (which are factual and historical) thoughtfully and sparingly, and in thumbnail format, in order to index to the reader that the author’s writings are criticism and commentary about the Times‘ glorification of war. No one is going to purchase this book in order to read the Times‘ front pages in drastically reduced format.”