Helmut Newton, Naomi Campbell, Cap d`Antibes, 1998, c-print. Via Artnet.
It is not without careful consideration that I repost the above Helmut Newton image along with the copyright infringement claim [below] I received this Friday from Büsing, Müffelmann & Theye, the law firm representing Ms. June Newton. An important photographer in her own right, the image appeared in a piece I wrote about In Fashion Photo’s Naomi Campbell retrospective this coming December during Art Basel Miami and seems to have ruffled a few of the heiress’s feathers. Not that it matters greatly — American copyright law dictates that no infringement occurs if the image is used for commentary, criticism, news reporting or educational use — but I did send an email asking for an explanation. I have received no response from the estate or their lawyers to date.
What I find particularly annoying about this request is that the Helmut Newton photograph in question would likely only benefit from the exposure I gave it; the work is available for sale, and I linked its Artnet listing as a courtesy. Notably the piece remains featured on Artnet with Galerie Andrea Caratsch, so I can only assume Mrs. Newton does not have a problem with galleries using the image, (just critics).
I have submitted the letter I received to the chillingeffects.org database for feedback and am providing a jpg and copy and pastable text from the cease and desist below for other bloggers who may want to pick this up.
Kowtowing to wrongful copyright infringement claims is a dangerous precedent I’m not willing to set. In light of the fact that several commentors have pointed out the letter of the law does not necessarily support fair use in this instance, I have removed the image from the original post. It remains here though, as its use squarely falls under fair use.
Dear Ladies and Gentleman,
Dear Mr. Johnson,
We are acting as the lawyers of Mrs June Newton, Monte Carlo, the former wife and sole heiress of the late photographer Helmut Newton. Under “http://www.artfagcity.com/2008/10/30/massive-links-miscellany-edition-6/” your blog shows 1 photographs of Helmut Newton. These photographs are protected under copyright law. So it is not allowed to upload the photographs to your blog without or to offer them for download without a copyright owners permission. Neither Mr. Newton himself nor Mrs. June Newton as copyright owners have ever authorized such use.
We assume you are unaware of the copyright infringement, so for now we don’t like to start legal proceedings. We just ask you to remove as soon as possible these photographs from your blog site.
You can contact us anytime at email@example.com
Attorney at Law
When a copyright holder sues a user of the work for infringment, the user may argue in defense that the use was not infringement but “fair use.” Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use. The defense generally depends on a case-by-case judgment of the facts.
Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are
- the purpose and character of the use,
- the nature of the copyrighted work,
- the amount and substantiality of the portion used, and
- the effect of the use on the potential market for or value of the copyrighted work.
Of course, even with these factors, it is problematic and often unyielding to try to predict what uses a court will deem fair.