The Brangelina Exception

I’m a little behind here, but I haven’t seen this in the IP blawgosphere….

Remember the hysteria over the Jolie/Pitt baby? Apparently People magazine paid over $4 million for exclusive photos. Gawker reproduced a big thumbnail of the People cover, sparking this nasty little exchange.

The dueling letters are notable for a few reasons. First, they show how quickly (mis)understandings of copyright law percolate into common parlance. Gawker appears to presume that the legality of Google’s image search is settled (pace Perfect 10, I guess!). This is a constant theme of the focus groups in the report Will Fair Use Survive?. And it’s perfectly understandable–people expect the law to be intelligible.

Another point–how can you blog about the cover without showing the cover? Is it possible to reduce the expression here (the People cover) to words? I don’t think so–rather, I think a wide range of commentary would be utterly crippled without the right to show (a small version of) the image itself.

On the other hand, this case leaves me sympathetic to the copyrightholder. Apparently Pitt and Jolie are giving the money they get for the pictures to charity. It’s not like this is just one corporate titan battling another. It’s a rare effort to commodify celebrity for the public good. So I’d throw in this case with Harper & Row v. The Nation…just as we want public figures to write memoirs, we want celebrities to commodify their notoriety to help the poor. Call it the Brangelina exception to fair use.

Hat tip: Gideonse Bible.