>Is there some reason that these would not qualify?

I believe excerpts of pictures or emails taken for news reporting qualifies as fair use. It's not like they showed the whole picture, they just cropped his face with the crack pipe in his mouth. Likewise, the full emails where they discuss illegally peddling influence and pay for play with all the headers wasn't published. Just select emails with enough metadata to give context.

Copyright doesn't supersede the first amendment right of free press. At worst, the NYPost is on the hook for $150,000 per violation. They can probably make that much and then some on the scoop. It may be worth it to them, even if they lose on a fair use argument. It's a huge scoop in October of an election year.

All true, in my not-a-lawyer opinion. The important addition is that "fair use" is a defense that allows the use of copyrighted material in certain circumstances. Like a book review that includes an excerpt from a novel, the underlying material is still protected by copyright. It doesn't mean the material is "not copyrighted"---the whole reason fair use applies is because it is protected by copyright. Practically all emails and photos that contain any element of originality are protected by copyright.

> I think you misunderstand US copyright law.

I probably do. This is the first I've heard of that.

Regardless, the NY Post article in question did not publish any of the pictures and I doubt the same copyright law applies to emails.

It looks like copyright does apply to the vast majority of emails based on the text of applicable laws.

"Northeastern University Law Review: Do Not Forward: Why Passing Along an Email May Constitute Copyright Infringement"

http://nulawreview.org/extralegalrecent/do-not-forward-why-p...

However, the issue has not been well tested in courts. The piece ends by saying "Congress should act to clarify whether and when forwarding an email infringes the author’s reproduction right in the work."

Since when has any news outlet considered copyright when publishing information of public interest? That is core fair use.

If copyright applied in cases like this, any politician who said or wrote something embarrassing could block reporting it.

Usually the embarrassing information is published before the embarrassed party is aware that their dirty laundry is about to go public. Once the information is out there, a copyright infringement suit is usually an irrelevant or losing move for managing the politician's image. I would rate this story worse for Biden if he filed a copyright infringement suit against the computer repair guy or the Post, for example. Using copyright could prevail legally yet lose in the more politically important court of public opinion.