November 1, 2017

He Who Lives by the Suit, Dies by the Suit

By Bryan K. Wheelock, Principal

CBS Broadcasting Inc. has sued photographer Jon Tannen for posting still images from the Gunsmoke episode “Dooley Surrenders,” first aired on March 8, 1958.  Online postings of images from classic television is fairly common, leaving one to wonder whether there isn’t more to the story — and it turns out there is.  As CBS Broadcasting explains in Paragraph 1 of its Complaint: “Tannen hypocritically engaged in this act of infringement while simultaneously bringing suit against Plaintiff’s sister company, CBS Interactive Inc., claiming it had violated his own copyright.”

Tannen sued CBS Interactive in February, claiming that the online division of CBS had used two of his photographs without permission to illustrate an article about high school football player Sofian Massoud.

Despite being created by statute (17 USC 107) the only thing certain about copyright fair use is that it not as broad as everyone thinks it is.  Grabbing pictures from Google image searches to make a point or make a joke is common, but not every such use is technically a “fair use,” although the widespread use of images in this manner probably is broadening the definition of fair use.  The Tannen v. CBS v. Tannen situation is a reminder that not all online uses of images are fair uses, and more importantly, if you are going to complain about something, you better not be doing what you are complaining about.