A gossip website which still carries disputed pictures of Angelina Jolie and Brad Pitt's baby says that its publishing of the pictures constitutes 'fair use'.
Time Inc, publishers of People magazine, and Getty Images, which took the pictures, pursued websites all over the world in attempts to stop the publication of the pictures before yesterday's publication in magazines. Magazines are thought to have paid between $5 million and $7 million in total for rights to publish the pictures.
Gawker.com, amongst others, published a shot of the cover of Hello magazine, which bought first UK rights to the pictures. Unlike other sites, though, Gawker refused to back down when contacted by Time, whose People magazine had bought the US rights. Gawker is a New York-based site which pokes fun at the media and celebrity industries,
"We stand by our belief that the image, which we have never displayed outside the context of Hello’s treatment of it nor at anything larger than thumbnail size, is an important news media story that is within our rights to cover as part of our reporting on the celebrity media industry," Gawker managing editor Lockhart Steele wrote to Nick Jollymore, deputy general counsel of Time Inc. Gawker has published its correspondence with Time Inc relating to the case on its website. A spokeswoman for Time confirmed that the published correspondence is accurate.
"We're firm in our right to report on Hello's treatment of the story, one of the biggest celebrity media news stories of the year," wrote Steele of Gawker.
"With all respect, this is not 'fair use' but wilful copyright infringement in an attempt to use a valuable photograph to enhance your site even though you have obtained no rights to do so," replied Jollymore.
The Time legal team said that it had co-ordinated its strategy with Hello and that neither company would pursue the case further if sites took down the images. "If they do not, we are co-ordinating legal action," said Jollymore.
Jollymore warned that the law in England, where Hello is published, was even more restrictive than in the US. Gawker eventually switched the image from being a picture of the Hello cover to being a picture of the People cover.
"In English law it would be a question of whether publishing the photo on the web as part of the magazine cover was 'fair dealing' with the copyright in the photo and it's clear to me that you couldn't publish the photo under fair dealing in the UK," said Kim Walker, media and intellectual property partner with Pinsent Masons, the law firm behind OUT-LAW.COM. "The defence of fair dealing for the purpose of reporting current events does not apply to photographs."
"In the US, though, the 'fair use' exemption is looser and wider and tends to take more account of public interest considerations when assessing fairness", said Walker.
Gawker later published images reproduced from the actual photo shoot from inside the magazine, which it subsequently took down.
Getty Images spokeswoman Alison Crombie said that the initial image was probably taken on a mobile telephone at some point in the printing or distribution of Hello magazine in the UK. "I don't think this will really affect the value of the pictures," she said.
Getty Images is agent for the rights sales and a spokeswoman said that neither Getty nor the celebrity parents would receive any money. "There is no money in it for us, it will all go to the charity they choose," said Crombie.