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Judge Posner and the Use of Photographs in Judicial Opinions

Seventh U.S. Circuit Court of Appeals Judge Richard Posner is one of the most respected judges in the United States, and is a well-known pioneer in the area of "law and economics." Reuters reports today that Posner has become a pioneer in another, much quirkier area: the use of photographs copied from the Internet to spice up his judicial opinions.

The use of photos to illustrate points probably does not seem all that novel to most people, but it is still rare enough in the legal world that it causes double-takes. When Mark Cuban's lawyer recently used a photograph of Cuban and the Mavericks celebrating their championship as part of a summary judgment motion (in a case questioning Cuban and the Maverick's management of the team), the tactic was hailed as innovative and "brilliant." As the Reuters article points out, Posner's use of photos goes back to at least 2007, but he has used them more frequently in the past few months.

In his opinion in Gonzalez-Servin v. Ford Motor Co. in November 2011, Posner included photos of both an ostrich and a man in a suit with their heads buried in the sand to reinforce his point that "[t]he ostrich is a noble animal, but not a proper model for an appellate advocate." In an opinion issued last week in Grayson v. Schuler, Posner again included photography -- this time a photo of reggae singer Bob Marley, intended to illustrate what "dreadlocks" are.

According to the Reuters article, Posner found the Bob Marley photo online, copied it, and then pasted it into the opinion. Asked whether such use violated any copyright laws, Posner said he believed that what he had done fell under the doctrine of "fair use." "It's not as if we're selling our opinions in competition with a photographer. Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder," he said.

Fair use or not, David Corio, the photographer who took the Marley picture, said he was surprised to see it used in the judicial opinion without any credit or attribution, and believed that "a judge of all people would be decent enough to ask permission before using an image."

Posted by Bruce Carton on January 20, 2012 at 03:53 PM | Permalink | Comments (4)