The U.S. Court of Appeals for the Sixth Circuit sided with a TV news reporter, concluding that the publication, by Hustler magazine, of semi-nude photos of the reporter (which were owned by the reporter) was a copyright infringement and was a commercial use beyond the scope of a fair use defense.  Catherine Balsley (a.k.a. Catherine Bosley) v. LFP Inc., Case No. 11-3445 (6th Cir., Aug.16, 2012) (Clay, J.).

Plaintiff Bosley, a TV reporter who (unbeknownst to her) was photographed semi-nude by an amateur  photographer covering a “wet T-shirt” contest where she was vacationing, lost her job after certain semi-nude photos of her appeared on the internet. Bosley purchased the photos and the copyright from the photographer and registered her copyright. About two years later, Hustler magazine—a Larry Flint Publications (LFP) magazine—published one of the photographs.  Bosley sued for copyright infringement.

LFT did not deny the infringement, but argued its use of the photograph was covered by fair use, and that, moreover, it could not be a willful infringer as it sought an opinion of counsel before publishing the photo.  The jury found infringement—but not willful infringement—and awarded Bosley $135, 000 in damages plus attorneys’ fees. The jury also found that Hustler/LFP was not entitled to a fair use defense under copyright law. LFP appealed.

The fair use doctrine, codified in the U.S. Copyright Law, permits the use of protected works under certain circumstances.  However, in this instance the 6th Circuit found that jury was not “unreasonable” in concluding Hustler’s publication of the photos was not for fair use purposes.

As presented in the Copyright Law, “[t]he fair use of a copyrighted work, including such use by reproduction in copies, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

17 U.S.C. § 107.

The 6th Circuit analyzed each of the factors and concluded the jury could reasonably have found each weighed in Bosley’s favor.  As for the first factor, the 6th Circuit concluded that “Defendant’s use of the Bosley photograph was clearly for commercial purposes, rather than for noncommercial, educational purposes. Hustler editors admitted that the ‘Hot News Babes’ section of the magazine was added to generate interest, sales, and profits.”  Moreover, the court found nothing transformative about the Hustler photo:  “Defendant’s use of the photograph was the same as [the photographer’s] original use—to shock, arouse, and amuse.”