Happy Holidays, from the McCloskeys: Copyrights for (even questionable) Photos

Who owns the rights to a journalistic photo of people on personal property?

On June 28th, 2020, Mark and Patricia McCloskey became infamous for the photograph of the two of them aiming guns from their yard at Black Lives Matter protesters who were marching down the street their home is on. The photo was captured by United Press International (UPI) photographer, William Greenblatt. Greenblatt has since sent the couple a $1,500 bill for their use of the photo in a set of personal holiday greeting cards. 

“I am in the business of selling images. I do not give them away for free,” Greenblatt stated in his invoice.

The McCloskeys responded by suing Greenblatt for allegedly violating their privacy. They claim that his photograph contributed to their “significant national recognition and infamy.”

Who and What is Protected Here?

Generally speaking, photographers own any photos that they take. They have the sole right to sell and license their work and post it to social media. Greenblatt’s photo is, in fact, protected by copyright.

Regarding the McCloskeys’ claim of privacy violation, the waters get a bit muddier. Photographers must be careful not to invade any space where one might “reasonably expect” privacy. This includes being inside one’s home, behind windows or within something like an outdoor walled garden or yard. There are also some instances of photography in public places that can violate privacy such as the use of hidden cameras, harassment or waiting for a compromising situation like full or partial nudity.

The McCloskeys were standing on their yard, their private property, but in broad daylight right next to a public gathering. Realistically, there should have been no “expectation of privacy” in that situation. Greenblatt had taken the photograph from the street, so he wasn’t trespassing on their land, although the McCloskeys have also argued that the protestors and photographers were trespassing on a private street.

The right of publicity is the right for one to control and profit from their own name and likeness. This right can be violated if a photographer used an image of you for “personal benefit.” That includes commercial use for things like advertising or merchandise. Greenblatt licensed the photo to many news sources and freedom of the press is a First Amendment right. Therefore, it is highly unlikely that the photographer violated the McCloskeys’ privacy.

What About Fair Use?

Greenblatt claims that the couple’s use of his photo in their greeting cards is in violation of the National Copyright Act. This raises the question of if this situation falls under fair use. Fair use is designed to permit the limited use of copyrighted works without permission for “the benefit of society.” There are several factors to go over when considering if something is fair use or not.

The first is the purpose and character of the use of the copyrighted work. Is it commercial or editorial (news, education, etc.)? This is often the most important indicator of fair use. The McCloskeys are not mass producing and selling their greeting cards. They are signing them and handing them out to their friends and supporters.

The second factor is the nature of the copyrighted work. This is a fancy way of saying “it depends what it is.” Facts, ideas and things dubbed in the name of public interest cannot be copyrighted. Whether the copyrighted work was published or not is a huge factor. Copyright law recognizes the right of photographers to control the first public appearance of their work. The photo was published by UPI and many other news publications, but it is up to the interpretation of the courts at the end of the day.

The third indicator of fair use is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. How much of the work was used and to what extent? For example, a quote from a book is more likely to be deemed fair use than that use of entire chapters. With photographs, it is usually more straightforward, unless it is featured in the background of a video or something of that nature. The McCloskeys used Greenblatt’s photo in its entirety on their greeting cards.

The final factor is the effect of the use on the value of the copyrighted work. This can be upheld even if the competing works are in completely different industries or markets. Are the greeting cards directly affecting Greenblatt’s right to make money off of this photograph? As of now, it is unclear.

Based on the information available, it is unlikely that the McCloskeys claim of privacy violation will be upheld. Their use of the photo on their greeting cards, however, is up for more interpretation. Arguments could be made for copyright infringement and for fair use.

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