Is reposting candid photos of women fair use?

Two Yale Law School students have sued posters on a law school discussion board for defamation, related torts, misappropriation of personality, and copyright infringement, for reposting candid photos that were part of one student's online collection at her own page.

What happened (Wash. Post article) to these students was inexcusable -- they were harassed, threatened and defamed, and I have subzero sympathy for the defendants, who may have thought that using pseudonyms exempted them from the ordinary requirements of humanity. But -- I did write a whole article about this type of copyright issue. And I think copyright is the wrong tool, though privacy torts might be the right ones.

As Feministe summarizes, the misogynist posters on the site, among other things, suggest that a woman who has the temerity to post ordinary pictures of herself on a general webpage has to expect that others will post crude fantasies and threats about her. Their "asking for it" argument is nothing new, but it's structurally similar to the argument the court accepted in Nunez v. Carribean International News Corp., 235 F.3d 18 (1st Cir. 2000): a debate over the existence and presence of the picture itself is at least a modestly transformative context for the copying. And here the individual posters' use of it was noncommercial.

The middle two fair use factors (creative but published; entire picture copied) favor the plaintiff a little but rarely matter. The effect on the market depends on whether we analyze the market for photos as a whole or segment it; courts have inclined towards the latter, at least in transformative use cases. There's not much market for uses of candid photos in discussion threads. The fact that they're candid wouldn't necessarily excuse the New York Times from paying if it used the shot to illustrate a story, but it makes copyright's incentives less important. So: fair use and criticism of women's bodies, once again joined.

Separately, there are barriers to the misappropriation claim, specifically the fact that the posters didn't benefit commercially from their acts. The IP claims have the great virtue, from the plaintiffs' perspective, of being available against the website because they're exempt from section 230 of the CDA, but here the plaintiffs didn't sue the site, so I'm not sure losing the IP claims would be all that harmful to the outcome. (Another relevant consideration: the copyright claim gets them into federal court.)