January 28, 2016
NYT sues publisher of War Is Beautiful: The New York Times Pictorial Guide to the Glamour of Armed Conflict
by Julia Fleischaker
The New York Times has filed a lawsuit against Powerhouse Books and its CEO, Daniel Power, over the use of images in the book War is Beautiful: The New York Times Pictorial Guide to the Glamour of Armed Conflict by David Shields.
Rebecca Tushnet lays out the argument on her blog:
David Shields recently published War Is Beautiful: The New York Times Pictorial Guide to the Glamour of Armed Conflict. The argument of the book is that the images chosen by the Times to decorate its front pages glamorize and glorify war. Agree or not, it is at least an argument, and Shields even licensed the full-size pictures in the book from the Times. However, the endpapers of the book as published show thumbnail images of the front pages of the editions from which the full-size photos come, and the publisher didn’t license the front pages. The Times has, quite unwisely, sued over this textbook (coffee-table book?) fair use.
Tushnet, a Georgetown University law professor, calls the lawsuit a “hissy-fit,” and at TechDirt, Mike Masnick writes that “there’s a damn good reason why they didn’t seek permission” to print the front pages. “Because they don’t need to. The use of thumbnail images in this sort of work is clearly fair use.” (Tushnet lays out the precedent.) Masnick also notes that the lawsuit “seems both petty and silly” and not even in the paper’s best interest. “The NYTimes itself, again, is a regular supporter of free speech and fair use. To be filing this lawsuit seems really against its own long term interests.”
In an email to Jeff John Roberts at Fortune, a spokesperson for the Times explained the paper’s position (they licensed the photos to Powerhouse, “which allowed them to freely express their opinions on our war photography,”) and noted that “Powerhouse has now sued the author and his lawyer alleging that they misled the publisher into thinking the use of the front pages was fair use.”
For his part, Power told Fortune that “they know it’s fair use, but they want to extract a pound of flesh from a small indie publisher for not doing what they wanted us to do.” Tushnet agrees: “It’s hard not to look at this lawsuit as the reaction of a paper embarrassed at having licensed photos for what turned out to be a work of harsh criticism.”
Julia Fleischaker is a former director of marketing and publicity at Melville House.