In a recently filed lawsuit, the New York Times finds itself in the perhaps unusual posture of suing someone else for going to print. The vaunted newspaper sued the publisher and the author of a recent book, War is Beautiful, alleging that the book’s cover used thumbnails of numerous NYT front pages without paying a licensing fee. The complaint, filed in December, alleges that Powerhouse Books infringed on the Times’ copyright when it printed the book with a cover that contained 64 images of front pages that depict wartime photography. The book itself argues that the Times has glamorized war throughout the decades by printing visually stunning photographs of battlefront scenes.

Though the publisher paid for larger images reprinted inside the book, it did not pay for the cover’s reproductions. The newspaper sent Powerhouse an invoice, which the publisher ignored, and the Times subsequently filed suit.

The publisher suggested that the newspaper was acting vindictively against a book that portrays it in a less than flattering light, and it said that the front pages’ use fell within the bounds of fair use, which is an affirmative defense to copyright infringement. This case is in some ways factually similar to Bill Graham Archives v. Dorling Kindersley, in which the archives sued for the use of Grateful Dead concert posters within a book about the Grateful Dead. In that case, fair use applied, even though the book was for-profit, because the use of the posters was sufficiently transformative.

Most commentators who have already weighed in agree that the Times will probably lose because these front page thumbnails also probably qualify for the fair use defense. The New York court will weigh that defense against the newspaper’s argument that the front pages were merely decorative and not sufficiently transformative.

Sources: http://fortune.com/2016/01/26/new-york-times-copyright/ http://www.scribd.com/doc/296730529/NYT-vs-Power https://www.techdirt.com/articles/20160125/22005433418/ny-times-files-ridiculous-copyright-lawsuit-over-book-that-mocks-nyt-glamorizing-war.shtml

For more information on this topic, please visit our Copyright Infringement Defense service page, which is part of our Software & Copyrights practice.

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