By now, everyone probably has heard about the drama between Mr. Bezos and AMI. AMI published a number of personal text messages between Mr. Bezos and a woman, who was not his wife. Mr. Bezos hired a team of PIs to investigate whether or not AMI has a political agenda against him. And now, AMI has allegedly threatened Mr. Bezons that if he does not drop the “defamatory conducts” against them, they would publish “private photographs” of Mr. Bezos. AMI, in their letter to Martin D. Singer, Mr. Bezos’ and his PI’s counsel, stated that:
As a primary matter, please be advised that our newsgathering and reporting on matters involving your client, including any use of your client’s “private photographs,” has been, and will continue to be, consistent with applicable laws. As you know, “the fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting . . . is not an infringement of copyright.” 17 USC Sec. 107.
To see whether Mr. Bezos can successfully sue AMI for copyright infringement if AMI published the “Private Photographs”, we have to discuss the following two questions:
1. Does Mr. Bezos own the copyright to these “private photographs”?
Loosely speaking, a person has copyright to the photos, he or she takes, given that the photos are original. The photographer does not have to register the copyright in his or her photos, although registering makes it easier to prove ownership of the copyright, in case a legal action arises.
Pursuant to s.102(a) of Title 17 of the United States Code:
(a) Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. ….
In Canada, we have a similar language in our Copyright Act:
5(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work …
A person who takes a photo may argue that the photo is an original artistic work and thereby establish ownership of copyright in the photo.
Given that the “private photographs” that AMI has allegedly obtained, were taken by Mr. Bezos himself, he has copyright in those photos. As the copyright owner of those photos, upon publishing the photos by AMI, Mr. Bezos will be able to bring a copyright infringement action against AMI.
The next question we have to consider is whether AMI will be able to defend itself against such a claim.
2. Can AMI successfully raise the defence of fair use?
Fair use or sometimes referred to as fair dealing, is a defence against copyright infringement claims. This doctrine was first introduced in the case of Folsom v Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841.
The defence has been codified in Section 107 of Title 17 of the United States Code:
…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
and in Canada, in s. 29 of the Copyright Act:
29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
AMI is basing their defence of fair use on the newsworthiness of the photos, as stated by the deputy general counsel for the company:
With millions of Americans having a vested interest in the success of Amazon, of which your client remains founder, chairman, CEO, and president, an exploration of Mr. Bezos’ judgment as reflected by his texts and photos is indeed newsworthy and in the public interest.
I can’t help but think of the highly publicized case of Bollea v. Gawker, in which the presiding judge in the United States District Court for the Middle District of Florida refused to grant a preliminary injunction against Gawker, stating that the company may have a defence in fair use. However, we all know what happened to Gawker after this case went to trial!
Now with the Bezos v AMI (has not happened yet!) facts are different from Bollea v. Gawker. In the latter, on cross-examination, apparently, Gawker had indicated that the video was not newsworthy and thereby ruined its fair use argument. With that being said, in my opinion, AMI has a strong argument for fair use based on newsworthiness, considering Mr. Bezos, the copyright holder, is arguably more famous and more influential than Mr. Hogan.
One has to also keep in mind that in the fair use defence analysis, the purpose of use is of great importance. If it turns out, as a result of the investigations prompted by Mr. Bezos, that AMI has a purpose, other than reporting news, in publishing the “private photographs”, then AMI’s argument for fair use may be rejected.
To be honest, with AMI links to president Trump and Mr. Bezos’ link to Washington Post, which has been a critique of president Trump, I would not be surprised if the investigations uncovered alternative motives. So, I guess we have to sit back and wait to see what the investigations will reveal.