> And the irony, of course, is this: the pictured bike itself was never stolen, but the rushed magazine photo has been – by hundreds of people, perpetuating a fake crime over and over. At what point (if ever) would using a photo like this fall under fair use? The author doesn’t seem to care, but I’m curious if copyright is ever forfeited due to widespread use or inaction of the copyright holder.
Never is the simple answer. Otherwise all copyright would have pretty much been eliminated by the pirate bay. Enforcement and collection of the damages is a totally different issue.
As for fair use: if you were to criticise something related to the image (say, you make a whole youtube video criticising the blog posts on this website and this image scrolls by when you do a quick lookaround on the website) or make some kind of transformative art out of it and the author would sue under DMCA or similar and the lawsuit would be based on US law, fair use would probably apply.
Fair use is a defence to use in a lawsuit, after all, not a right, but you can definitely do things with this picture that would be defensible under fair use. Companies specialising in copyright would probably try to convince you to avoid a lawsuit and come to a mutually beneficial agreement before the thing is settled, though, because big media companies do not like it when copyright law and things like fair use get defined (and thus consumer rights may be gained, and the excessive wealth of the media industry might get dented).
What the pirate bay did could never really be construed as fair use. At best, they can claim to simply host links, no content, and should not be held accountable for the illegal behaviour of the users and searching clicking said links, just like normal service providers. That's not an exemption in copyright law, though.