Thursday, September 17, 2009

Cropping Photos - Cropping Truth: The Lack of Moral Rights Under U.S. Copyright Law

David Hume Kennerly, the White House photographer for President Ford, is upset, perhaps rightfully so, at the crop job by Newsweek to one of his photos. His article in the N.Y. Times, expressing frustration at misleading photo cropping, is here.

Kennerly submitted a photo of Vice President Cheney and his family in their kitchen, with the VP carving the family dinner. The magazine aggressively cropped the photo so as to show only the VP cutting up something bloody with a long knife. The cropped photo was used in an article criticizing the VP's stance on secret, aggressive CIA interrogation. Certainly worse, the magazine gave attribution to Kennerly for the cropped photo.

Kennerly's essay in today's N.Y. Times criticizes this type of gotcha journalism in that the cropping is misleading: it mischaracterizes the true meaning of the photo and the true circumstances depicted in the photo. But Kennerly's unstated point is broader and relates to the lack of practical "moral rights" present in U.S. copyright law.

Sect. 106A of the Copyright Act provides certain basic and very limited "moral rights" to an author of a work of visual art. A photograph can qualify as a work of visual art provided the photo is produced "for exhibition purposes only," in a single copy, or in a limited edition of 200 or fewer copies that are signed and consecutively numbered.

Kennerly's photo does not qualify as a work of visual art under the narrow statutory definition. Even if it did, Kennerly's "moral rights" would be exceedingly limited, including the right of attribution, the right not to have his name associated with his work in the event the work is distorted, mutilated or modified, and the right to prevent mutilation or distortion of the work in certain instances.

Kennerly's complaint, moreover, does not qualify for infringement purposes, likely for the same reason that Acuff-Rose Music lost its case against Two Live Crew. Accuff-Rose Music claimed that the taking of a portion of its copyrighted song "Pretty Woman" by Two Live Crew, who then produced a separate work strongly critical of the content and themes of "Pretty Woman," constituted copyright infringement. But the Supreme Court held that there was no infringement because the taking of a portion of the music resulted in fair use. In a similar manner, it is likely that the taking of a portion of Kennerly's family-friendly photo of Cheney, cropped to show only the VP cutting up something bloody, and then matching the cropped image to a statement attributed to Cheney about CIA interrogations, may be fair use for copyright purposes. But it certainly may not be fair for moral purposes.

The definition of "work of visual art" under U.S. copyright law is so limited that an author of a news photograph, not taken for purely exhibition purposes, cannot obtain any legal traction to prevent mutilation of the photo and, thereby, prevent mischaracterization of the work. It is unclear why the definition cannot be expanded to include all photos, including those taken for news purposes and not solely for exhibition purposes. If the definition were so broadened, then at least Kennerly could prevent his name from being associated with the mutilated photo. The misleading meaning of the cropped image would then not be attributed to him. This would be important to Kennerly, of course. And dropping Kennerly's name might perhaps cause Newsweek to rethink its cropping so as not to suffer the loss of Kennerly's authority and prestige. Bottom line, news photos should not be cropped if to do so becomes misleading.

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