I’ve blogged about Judge Posner’s inclusion of photographs of Bob Marley and an ostrich in his opinions to make a point. Here is an interview with Posner that addresses a question I had–did he pay for the usage of these images (doubtful).

The pictorial flourishes haven’t exactly outraged the bar or prompted a soul-searching national legal debate, but they have raised a few questions. For one, what are the copyright implications of reproducing images lifted from the Internet?

In an interview with Reuters, Posner took a few moments to think about it before concluding that the practice falls under the doctrine of fair use, which allows copyrighted material to be reproduced without the permission of the copyright holder.

“It’s not as if we’re selling our opinions in competition with a photographer,” he said. “Using the photo in a judicial opinion couldn’t conceivably be hurting the copyright holder.”

 …

“With the Internet, it’s extraordinarily easy to find photographs of anything, including fake pictures of ostriches. It’s a temptation to include them in an opinion. I’m surprised it isn’t done more frequently,” said Posner, a judge known for applying economic reasoning to legal practice and who founded a law and economics blog.

The creator of the image, who has licensed it through Getty, was none-too-pleased.

However, David Corio, the British photographer who took the picture of Marley, said he was surprised to see it in a judicial opinion without any credit or attribution. He said he contacted Getty Images, an agency that sells his work, to see if the company had provided the court with the photo. “I would have a thought a judge of all people would be decent enough to ask permission before using an image,” he said.

The attorney, whom Posner compared to an ostrich, has apparently filed a grievance!

David “Mac” McKeand, the plaintiffs’ lawyer who was the object of Posner’s ostrich-photo-jab in Gonzalez-Servin v. Ford Motor, was so offended by the image he submitted a grievance with the 7th Circuit.

“If the judge can bully plaintiffs’ lawyers, he’s going to do that to protect American corporations,” said McKeand, whose grievance was dismissed.

Posner lame conditional apology:

Posner said it was the first negative feedback he’d received for an image. “I’m sorry he was upset by it,” he added.

And, on the topic of Judge Posner, Judge Silberman had some choice-words for the sage of the Seventh Circuit in an address he made at an NRA Civil Rights Defense Conference dinner recently.

Since Posner concluded the Second Amendment is, at best, ambiguous, he argued for what he called a “loose construction” of the Constitution – which, if you are familiar with Judge Posner’s approach, typically means judges should use their own, supposedly wise judgment, and interpret the constitution to fit modern conditions.  Then, seemingly unaware of the contradiction, he maintained that to hold contrary to the Supreme Court’s majority – to use “wise judgment” to uphold the D.C. gun law – would have been an exercise in “judicial modesty.”  Indeed, for Judge Posner, who for years has flouted the judicial canon of ethics by publishing books and articles and blogging on all sorts of public policy issues of obvious political significance, to extol judicial modesty in any connection is a new definition of chutzpah. 

What do you call it when one judge benchslaps another judge?