BLACK AND WHITE
Why Is the New York Times Suing Over an Art Book?
The New York Times is threatening to sue a small publisher for an alleged publishing infraction, but what motivation really lies behind the lawsuit?
War Is Beautiful is a protest book about the Iraq War. It does not target the Bush administration so much as the newspapers, namely The New York Times, that were all too willing to spread a White House’s message about weapons of mass destruction that never were.
The book makes an artful, journalistic point: Photography on the front page of the paper of record depicted the conflict in rosy, gorgeous, cinematic ways, like the first scene in Apocalypse Now.That kind of treatment, the project’s author, David Shields, contends, helped elongate a war that wound up being America’s first, great 21st century quagmire, responsible for the deaths of over 4,200 Americans.
Even if one were to disagree with the book’s premise, it is a valid criticism and a useful piece of protest art.
So why is The New York Times suing Shields’s publisher, Powerhouse Books, for $19,000?
“They’re doing it because they can. And, yes, they don’t like it,” Daniel Power, the owner of the publisher, told The Daily Beast. “They don’t appreciate it.”
Every image in the book is fully licensed. The photographers are getting paid. So what’s the problem?
The problem comes in the binding of the book. The inside back cover is decorated with 64 thumbnails depicting the photos on the front pages of the Times.
“We didn’t expect we’d have a First Amendment fight,” said Power. “Plus, we licensed the damn images and compensated these photographers for their work.”
First Amendment advocates and critics across the Web took aim at the Times, one of journalism’s historically fiercest free speech advocates. They felt the paper was trying to get revenge on a small publisher that dared to question them.
The New York Times’ reporting and editorial practices leading up to the Iraq War, remember, should not be above criticism or easily forgotten. The paper was forced to admit some of reporter Judith Miller’s highly influential stories about weapons of mass destruction were inaccurate in the run-up to the war.
“Well, this is disappointing to the extreme,” wrote TechDirt’s Mike Masnick in a story called “NY Times Files Ridiculous Copyright Lawsuit Over Book That Mocks NYT For Glamorizing War.”
But representatives for The New York Times’ legal team say it’s not quite so easy.
“We have a strong record of supporting fair use when it's warranted,” said the New York Times’ executive director of communications, Danielle Rhoades Ha. “In this instance, the front pages were used for decorative effect, not for any transformative purpose, which undercuts any claim of fair use.”
Here’s why the Times thinks it has a point: Powerhouse Books is now also suing Shields, the author, and his lawyer for supplying the publisher bad info about what is and isn’t fair use.
Shields declined to comment to The Daily Beast on the book or the lawsuit.
“It is worth noting that Powerhouse sued the author and his lawyer alleging that they misled the publisher into thinking the use of the front pages was fair use. If Powerhouse thought this was an open-and-shut case of fair use, they would have filed a motion to dismiss,” said Rhoades Ha. “They did not do that.”
Power isn’t buying it.
“We’re not using you to sell anything, other than it’s a project analyzing and dissecting how your editorial processes can be viewed in a way to sell a war,” he said. “They’re the paper of record. Their techniques or opinions can’t be beyond reproach. They can’t just say, ‘How dare you accuse us of being patsies to U.S. military policy and aestheticizing military conflict!’ and have it be over with.”
Power thinks he has a trump card. The Times, he says, had initially attempted to force the company to change the description of the book online to make the paper’s name less prominent.
“They originally contacted us to complain about the description online—that they thought we were using them to sell our product,” he said.
Then, he says, the paper changed the request to alter the subtitle of the book, which was The New York Times Pictorial Guide to the Glamour of Armed Conflict* (in which the author explains why he no longer reads The New York Times), because “they thought it was misleading,” according to Power.
“Then it became the thumbnails. Then a bill came for $19,000. Then we laughed and we said, ‘We’re not paying this,’” he said.
The Times told The Daily Beast it simply wanted the subtitle changed to “A Pictorial Guide to the New York Times’ Glamour of Armed Conflict,” but were rebuffed and told the books had already been printed.
It was then, the Times says, it asked for a change of the description of the books online. It also asked for a disclaimer to make it clear the book wasn’t affiliated with the Times.
“They ignored this suggestion,” said Rhoades Ha.
All of this happened, Rhoades confirmed, before the Times got their hands on the book. Now, the paper contends, they’re just trying to collect an invoice for $19,000, even though this is almost definitively a textbook case of fair use. Thumbnails of copyrighted materials are protected speech, dating back to a very specific case just like this one about Grateful Dead posters 10 years ago.
“Licensing content is not ‘quelling speech,’” said Rhoades Ha. “We licensed all of the photos within the book to Powerhouse (with the exception of the 64 Pages Ones), which allowed them to freely express their opinions on our war photography. (The Daily Beast uses the same licensing agency [PARS] we do.)”
The Times’ Teju Cole wrote about War Is Beautiful last month, effectively panning it and calling it a “missed opportunity.” It wasn’t spoken of in the paper again.
And, yes, licensing isn’t quelling speech. But when the photographers were already paid, isn’t this a hell of an effort by the legal department of the paper of record to make it harder for criticism to be published as the writer intended?
“It certainly feels like an instance of, ‘What we’ve decided to use for photography is our final word,’” said Power. “‘And if you accuse us of making shortcuts, we’re gonna find what we can to mess with you.’”