As a personal note, I don’t really care about celebrity gossip. I find it completely uninteresting. But there are millions of people that care passionately about which B-List actor is dating which pop star of the moment. For these people Angelina Jolie and Brad Pitt’s baby has been the biggest news story in a while. I don’t get it, but I’m not one to judge. I mean, people think I’m crazy for caring about copyright and patent law.

Which brings me to my point. Gawker published a small photo of their new baby. One that Time Inc. paid over $4 million to have the exclusive American rights to. Time Inc., obviously unhappy, decides that the old cease and desist racket is the way to go.

Dear Mr. Steele:

Your thumbnail is 2.5 x 3.5 inches on my screen. With all respect, this is not “fair use” but willful copyright infringement in an attempt to use a valuable photograph to enhance your site even though you have obtained no rights to do so.

The Time Inc. Law Department is coordinating with the lawyers for Hello!. Matthew Higdon, who acts for Hello! in the UK, authorized me to inform you that under U.K. law there is not even a colorable claim that Gawker’s posting of the Hello! cover is within the bounds of “fair use.” As you know, the copyright law in the U.K. is much less flexible in this respect than the law of the U.S. Gawker can be sued in the U.S. by both Time Inc. and the publisher of Hello!

Hello! and Time Inc. are coordinating our pursuit of websites which have posted the Hello! cover. The first step is an notice, which is also the last step if the sites take the cover down immediately. If they do not, we are coordinating legal action.

I repeat my demand that Gawker take down the Hello! cover immediately.

Won’t somebody think of the children?

The EFF breaks down the four criteria of determining fair use:

Let's look at the four fair use factors. First, the use is for news reporting, an activity explicitly recognized as deserving of fair use protection in Section 107 of the Copyright Act. On the second factor, the nature of the work, while there is certainly creativity in the photograph, it is principally a factual subject -- Brad and Angelina's baby. The third factor -- how much of the original was taken -- also ought to favor Gawker. After all, they only took a 160 pixel thumbnail of the original. (It's not clear to me whether these photos are still "unpublished," but the Supreme Court in Harper & Rowe v. The Nation made it clear that the unpublished nature of a work does not preclude a fair use finding.)

Just because Time Inc. paid $4 million for the photo does not magically make fair use go way, as much as they would like it to. If anything, by paying so much Time has shown that the photo is newsworthy and open for debate and criticism.

The moral of the story is that fair use is under attack from all sides, not just Big Copyright in California, despite being recognized by the Supreme Court as protected speech.