Are wet t-shirt photos news, and therefore of sufficient public interest to trump the law of copyright? That’s the claim made by Hustler magazine after it published a registered photo of news anchor Catherine Bosley participating in a wet t-shirt contest. The 6th Circuit Court of Appeals wasn’t convinced.

In 2003, Bosley was a news anchor for Cleveland’s CBS news affiliate. She was photographed participating in a wet t-shirt contest in Florida. Several photos came to light on the internet, and she lost her job.

A few years after the incident, Hustler ran one of the photos of Bosley participating in the contest. Unfortunately for Hustler, since losing her job, Bosley had contacted the photographer, purchased the rights to her own wet t-shirt photos, and registered a copyright to the photos. Hustler knew the photo was copyrighted, but never looked for the owner or asked permission to use it.

After Hustler ran Bosley’s photo in an issue of Hustler Magazine that sold over 180,000 copies, Bosley sued for copyright infringement.

Copyright infringement may be established by showing ownership of a valid copyright, and the copying of “constituent elements of the work that are original.” In other words, copyright infringement is copying any original element of a protected work. And a work is protected as soon as it’s created–but actual enforcement requires that the work be registered, as Bosley’s photos were.

Hustler ultimately admitted that the photo it used was protected, and that it used the photo without permission. But Hustler asserted that it was entitled to the protection of the “fair use” defense.

The fair use defense, codified at 17 U.S.C. § 107, provides that copying a protected work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research is not an infringement. In deciding whether the fair use defense applies, courts consider four factors:

• The purpose and character of the use – Specifically, whether the work has been transformed through its use (think Andy Warhol’s soup cans or DJ Shadow’s entire catalog), and whether the use is commercial or not for profit.
• The nature of the copyrighted work – Is the original work creative, or just a factual impression?
• The amount and substantiality of the portion used – Is just part of the work used, or the entire thing?
• The effect of the use on the potential market or value of the work – Here, courts hold that every commercial use is presumptively an unfair exploitation of the work, and a diminution of its value. It’s up to the infringer to prove otherwise.

On this evaluation, Hustler didn’t fare well. The court found that Hustler’s use was plainly commercial–even though Hustler argued that it was merely reporting the news. (The court countered that the photo was three years old at the time, and Hustler ran it as part of its regular “Hot News Babes” column.) The court also found that the photograph was slightly creative, though it noted that the 6th Circuit has not formally determined whether photographs are creative or just factual in nature. And Hustler used nearly the entire photo, minus a bit of minor cropping, so that weighed against them as well.

On the question of whether Hustler’s use impacted the market for Bosley’s photo, the court noted that “a copyright owner is not required to show that actual harm has come to her, but must show merely a potential effect on the market.” From there, the court determined that by giving away the photo for free, Hustler was undermining the photo’s market value. It didn’t matter that Bosley had no intention of selling them.

In the end, the court had little difficulty reaching the determination that Hustler did not have a fair-use defense, and that it stole Bosley’s photo. The court therefore upheld the jury’s decision to award Bosley $135,000 in damages.