Peter Zuzga is a photographer.
He sent me this e-mail:
from: Peter Zuzga <e-mail address redacted>
to: freedomeden@gmail.com
date: Thu, Feb 5, 2009 at 4:33 PM
subject: Vernita Lee photo
My name is Peter Zuzga and I am the copyright holder of the photograph you have on your blog of Vernita Lee Winfrey. I made the photo under contract with the Milwaukee Journal-Sentinel newspaper and you do not have permission to use the photo of Vernita Lee Winfrey.
Remove the photo of Vernita Lee Winfrey from your blog immediately or contact me regarding payment for your unauthorized use.
Peter Zuzga
Not only do I believe that my posting of the photo of Vernita Lee would be considered "fair use," but I think Zuzga's message to me is somewhat threatening.
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.
I used the photo on two of my blog entries, here, September 4, 2008, and here, September 30, 2008. Those entries discuss Vernita Lee's failure to pay her bill of $155,547.31 in purchases and interest to Valentina Inc., a fashion store in Brookfield.
Good grief. Those posts are tucked way back in the archives. It took quite a while for Zuzga to cry foul, didn't it? That's kind of strange. Why now?
Could it be that Zuzga objects to his Vernita Lee photo appearing on a blog that doesn't promote his political views? I think that's a strong possibility.
(Note: My "intern" has transformed Zuzga's photo of Vernita Lee, adding to the original by creating new insights. After receiving Zuzga's e-mail, I replaced the original image on the two September posts with my "intern's" parody image. I believe it is sufficiently transformative to satisfy "fair use" analysis.)
(Note, 11-24-09: I've replaced Zuzga's photo on the 2008 September entries. The original Zuzga image remains online, without attribution, on other sites, including personal blogs not affiliated with any news or entertainment organizations. Has Zuzga received payment for this use of his prize photo? Highly unlikely.)
Vernita Lee (Adapted from Journal Sentinel files photo)
From Stanford University:
Measuring Fair Use: The Four Factors
Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors in resolving fair use disputes, which are discussed in detail below. It's important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.
The four factors judges consider are:1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantially of the portion taken, and
4. the effect of the use upon the potential market.
Read more about determining "fair use."
Zuzga considered my posting of the photo of Vernita Lee to be an unauthorized use. I considered it to be a fair use. Rather than wrangle about that, I chose to go the parody route, placing my use of the image clearly within the realm of fair use.
In addition to being sufficiently transformative, the fact that Zuzga's image had already been published in the Milwaukee Journal Sentinel works in my favor. Furthermore, I don't think a court would rule that the market for the original image of Vernita Lee would be substantially diminished by the posting on this blog. If anything, my posting might increase the exposure of Zuzga's photo.
Taking into account the four-factor criteria for measuring fair use, I am confident in my assessment.
Although Zuzga claims I'm in violation of his rights, I believe that the copyright laws allow for my use of the photo.
Was my posting of the photo depriving Zuzga of any income, something that usually triggers a lawsuit? I doubt it.
Was I profiting financially from posting the photo on this website? Not at all.
I'm sure a federal judge would rule in my favor, but the "only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court." Oh, well.
I'm struck by the timing of Zuzga's e-mail. Why would he make an issue of my posting the photo on my blog nearly six months after the fact?
It's probaby related to politics.
I'm GUESSING that Zuzga may have been inspired by the story of AP claiming copyright infringement by Los Angeles-based street artist Shepard Fairey.
I'm afraid that case is in an entirely different league.
(AP Photo/Manny Garcia/ Shepard Fairey)
(Note: I claim it's "fair use" for me to post this AP photo.)
___________________
UPDATE: "Alan Herzberg" comes to Zuzga's defense, sending me a rather harassing e-mail.
Herzberg sarcastically wishes me "good luck with that argument in front of a judge."
Right. It's not going there. Moreover, I don't know why he seems to assume that I haven't received legal advice regarding copyright law and fair use.
Herzberg warns me not to "be so sure that [my] unauthorized use of what is one of the very few public photos of Vernita Lee that exists has no impact on the market for future licensing of that image."
A few things--
Clearly, he hasn't tried very hard to find images of Oprah's mother online. They're out there. Vernita Lee is not a recluse. She does make public appearances. On February 15, 2008, she was at a Barack Obama rally at the Midwest Airlines Center in Milwaukee. Thousands of people had the opportunity to take pics of Lee.
In addition, Lee has done interviews on Milwaukee TV newscasts.
Here's one from WISN. TMJ4 also interviewed Oprah's mother.
"One of the very few public photos of Vernita Lee that exists"? With all due respect, that's laughable.
The point Herzberg raises about the market for future licensing of the image makes me wonder about the unfulfilled demand for photos of Vernita Lee. I had no idea the photos were such a hot commodity -- Bristol Palin's baby, Michael Phelps with a bong, and Vernita Lee.
Herzberg mocks my discussion of fair use as "half-baked." I guess he must consider U.S. copyright law half-baked.
I wonder why Zuzga and his colleague Herzberg are so bent out of shape about the September 2008 posting of the photo on my blog, given that it is on other personal blogs not affiliated with any news or entertainment organizations.
Is Zuzga demanding action or payment from these people as well? The photo is out there. Either they haven't complied or they've paid up. I doubt that they've paid for the image. It's not as if other photos of Lee aren't available.
Finally, why is this supposedly rare image just credited as a Journal Sentinel file photo? Why doesn't Zuzga insist on being recognized by name for his gem? Wouldn't you think that Zuzga would be marketing this very "valuable" photo of Oprah's mother if it's such a gold mine?
At this point, I've seen no proof that Zuzga owns the image. I also have no verification that the e-mail I got from "Peter Zuzga" is from photographer Peter Zuzga.
(Note: The name of Oprah Winfrey's mother is Vernita Lee, not Vernita Lee Winfrey.)
