Is Dance Troupe Liable for Photo in Background?

N.Y.C. Garbage collector's strike, 1911- horse-drawn
cart being stoned (with 'scab' driver hiding inside).

Dear Rich: A member of my wife's dance troupe composed a piece about the Memphis sanitation worker's strike in 1968, and used a number of images from the time projected behind the stage during the dance. A magazine published a story on the performance, and included a picture of the dance that showed the projected image of striking sanitation workers. We've heard from someone at the magazine that the photographer's lawyer has contacted them. The image is of a historical event, and the topic of the performance was the impact of the strike. Isn't this fair use? If not, is the dance troupe liable? Yes, the dance troupe would be liable for infringement if a court determined that the photograph was copyrighted, was displayed without authorization, and did not qualify as a fair use. As Dear Rich readers are aware, what makes fair use such a slippery concept is that it can only be proven by going to court and most people can't afford to take the issue that far.
What do the courts say? There are a handful of cases where unauthorized imagery has appeared as the background in theatrical works, including theater, film, and TV. In one of the better known cases, a court of appeals determined that it was not a fair use to post the poster of a “church quilt” in the background of a television series (for a total of 27 seconds). The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).) On the other hand, several copyrighted photographs appeared in the film Seven, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The court excused the use of the photographs as “de minimis” and didn’t require a fair use analysis. (Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).) Your situation is likely somewhere in between these two cases. We've summarized other fair use cases here (to give you a flavor of how judges rule) and we discuss the four fair use factors, here. We think your case could go either way and will likely be dependent on the duration of the photo's display, whether the display is considered informational and/or for purposes of commentary, and whether the combination of the dance performance and photograph creates a transformative use of the image. This may be one of those cases where an attorney's advice is needed. Assuming you're in Memphis, can you avail yourself of this organization's legal services?