Copyright grants the owner of a copyright certain exclusive rights in the use of copyrighted works, but there are limitations on those exclusive rights. 17 U.S. Code § 107 (Limitations on exclusive rights: Fair use) provides that, notwithstanding the granted exclusive rights, use of the work "for purposes such as criticism, comment [and] news reporting... is not an infringement of copyright." So what if a blogger uses an unflattering copyrighted photograph in a story critical of the person who is the subject of the photograph? Has the blogger infringed the copyright in the photograph by publishing the photo? Can the blogger be stopped from using the photograph or do the First Amendment and the fair use doctrine trump a claim of copyright infringement? Should the Court ruling upon the copyright infringement case consider the First Amendment rights of the author and the public when analyzing whether use of the photograph is a "fair use?" These issues are discussed in The Washington Post article Copyright as censorship? Katz v. Chevldina which I recommend to your reading this week. The story also links to the briefs submitted to the 11th Circuit Court of Appeals, including an amicus brief by the Electronic Frontier Foundation in support of the defendant blogger, which takes the position that the Court should consider "the broad First Amendment interests implicated by the use of copyright for censorship."
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