Monday, June 25, 2007

The Winter Hill Gang and Fair Use

How new does news reporting have to be to be fair use? That’s a simplistic way of framing a complex set of facts and a perhaps disappointing outcome in Fitzgerald v. CBS Broadcasting, Inc., 2007 WL 1793551 (D. Mass. June 22, 2007). Readers are pointed to the opinion for the convoluted facts, but here, for fair use purposes, are the essentials.

The Winter Hill Gang in Boston is an infamous organization, described by Wikipedia this way:

The Winter Hill Gang is a loose confederation of Boston-area organized crime figures, mostly Irish-American and some Italian-American. It derives its name from the Winter Hill neighborhood of Somerville, Massachusetts north of Boston. Its members have included notorious Boston gangster James J. "Whitey" Bulger and hitman Stephen “The Rifleman” Flemmi.


The story of Whitey Bulger, is all the more fascinating due to his straight-arrow brother William, who was the president of the Massachusetts Senate and then the president of the University of Massachusetts until forced from that post by Governor Mitt Romney.

Plaintiff Christopher Fitzgerald is a freelance photographer who in 1995, took a photograph of The Rifleman being transferred from the Framingham State Police Barracks to an undisclosed location. His were the only photographs of the event. The photo was licensed numerous times, but CBS appears to have been snake-bit in its relationship to the photos and Fitzgerald, getting repeatedly sued and repeatedly breaching settlement agreements.

The most recent suit was triggered by the arrest of former Winter Hill gang member John Martorano, and his purported agreement to cooperate in the authorities’ investigation into Whitey Bulger and The Rifleman. (Flemmi and Bulger had earlier been FBI informants and are alleged to have committed vicious murders while informants). In connection with the arrest of Martorano, CBS dusted off Fitzgerald’s photos from its archives (which should have been purged of the images under a settlement agreement), cropped out the police from the shot, and showed the cropped photo of Flemmi on the evening news in conjunction with a story of the arrest. Fitzgerald sued; CBS alleged fair use news reporting, which the court rejected, granting plaintiff summary judgment on the issue (ouch!).

The court’s opinion is earnest, thoughtful, and detailed. It is also a fair-use-by-the numbers opinion, meaning it marches through the four factors and at the end announces a conclusion. This may reflect nothing more than the requirements of opinion writing, but alas, the opinion is all we have as insight into the court’s thinking.

On the first factor, plaintiff argued there could be no news reporting because there was no new news, The Rifleman having been arrested 9 years earlier, but as the court pointed out, the Martorano events were news. Nevertheless, the court found the use non-transformative:

CBS argues that it transformed the meaning of the photo by cropping out some of the evidence of the arrest-the state troopers-and embedding the cropped photo in a narrative about John Martorano. This is slicing things a bit thinly. In its news report, CBS highlighted the importance of Martorano's sentencing partly by explaining that Martorano's testimony had led to Flemmi's arrest; CBS used Fitzgerald's photograph of the arrest to enhance this point. The only “transformation” was that Flemmi's arrest was downgraded from breaking news to a supplementary part of a larger story. The distinction that CBS argues for here is so fine that it ceases to have meaning in the context of ordinary news practice.

The final passage refers to licensing, and while the court did not let industry practice dictate fair use (see footnote 2 in the opinion), CBS’s own checkered history with Fitzgerald must have played an important role. The court also found the use commercial in nature, weighed the second factor in CBS’s favor by describing the photos as factual works (a bit of a stretch), found the third factor to have minor importance, and after describing the fourth as the most important, weighed it in favor of plaintiff after noting CBS’s tortured past conduct.

In the end, the case may be nothing more than fact specific (i.e., CBS's snake-bit behavior; a jury is to determine whether it was willful), but the court’s discussion of transformative use solidifies for me the need to abandon that terminology before it swallows the whole of fair use: the discussion of cropping and whether it was transformative and therefore helpful in determining fair use, is the worst sort of mechanistic, formalist thinking: to me the issue should have been simply whether there was a valid new reporting purpose and use for the photo, and whether the settlement agreements, as a contractual matter, effectively barred reliance on fair use.

1 comment:

Rebecca Tushnet said...

I think you're spot-on about the increasing disutility of "transformation." It's become the word for "fair," to the detriment of consistency.