“Make Sure You Get My Good Side” – Blogger’s Use of Photo is Transformative, Fair Use – Defeats Copyright Suit (11th Cir.)

As someone who eats, drinks and sleeps social media marketing and blogging, this 11th Circuit case naturally captured my attention.

The plaintiff in Katz v. Chevaldina, 2015 WL 5449883 (11th Cir. 2015), Raanan Katz, a Miami businessman and co-owner of the Miami Heat, sued the defendant – one of plaintiff’s former commercial tenants and a full-time blogger – for using his photograph in 25 separate blog posts that derided Katz’s real estate business practices.  The “embarrassing”, “ugly,” and “compromising” photo (according to Katz) was taken by a photographer who originally published it on-line in an Israeli newspaper, the Haaretz.  Defendant later found the photo on Google images and used it as an illustration in her scathing posts.

After taking an assignment of the photo’s copyright from its photographer, Katz sued the defendant for copyright infringement.  The District Court granted summary judgment for the blogger on the basis that her use of the photograph was satirical commentary and a fair use of the image.  Katz appealed.

Held: Affirmed.

Rules/Reasons:

Section 107 of the Copyright codifies the fair use doctrine which posits that use of a copyrighted work that furthers “criticism, comment, news reporting, teaching, scholarship, or research” is not an infringement.  17 U.S.C. s. 107.

The four factors a court considers to determine whether fair use applies are (1) the purpose and character of the allegedly infringing use (here, reproducing the photo of plaintiff on defendant’s blog), (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; and (4) the effect of the use on the potential market or value of the copyrighted work. (*2).

The Court held that three of the four factors (1, 2 and 4) weighed in favor of a fair use and affirmed summary judgment for the defendant.

(1) Purpose and Character

This factor requires the court to consider whether the use serves a nonprofit educational purpose as opposed to a commercial one and the degree to which the infringing use is “transformative” as opposed to a “superseding” use of the copyrighted work.

A use is transformative where it adds something new to a copyrighted work and infuses it with a different character and “new expression, meaning or message.”  A use of a copyrighted work doesn’t have to alter or change the work for the use to be transformative.

The court found that defendant’s use of plaintiff’s photo was both educational and transformative.  It found that the defendant posted the photo as an adjunct to articles in which she sharply criticized plaintiff’s business practices and she made no money from her use of the photo.  Her use of the photo satisfied the “comment” and “criticism” components of the fair use doctrine.

The use of photo was transformative because the defendant used it to make fun of (“satirize”) the plaintiff and impugn his business ethics.  At bottom, the defendant’s use of the photo was a critical statement and therefore transformative under copyright law.

(2) Nature of Copyrighted Work

Copyright law gives more protection to original, creative works than to derivative works or factual compilations.  Courts consider whether a work was previously published and whether the work is creative or factual.  Here, the photo was previously published in an Israeli newspaper and its use in the defendant’s blog was mainly factual.

Noting that “photography is an art form” rife with creative decisions such as tone, lighting, and camera angle, the Katz photo was a simple candid shot taken in a public forum.  It lacked any badges of creativity that could give it strengthened copyright protection.  The court also pointed out there was no evidence the original photographer sought to convey emotion or ideas through the photo.

(3) Amount of Work Used

This fair use factor considers the amount of the copyrighted work used in proportion to the whole.  This factor is less relevant when considering a photograph though since most of the time the entire photo must be used to preserve its meaning.  That was the case here: defendant had to use all of Katz’s photo to preserve its meaning.  Ultimately, because the defendant used the whole photo as an adjunct to her blog posts, the “amount used” factor was a wash or “neutral”.

(4) Effect of the Infringing Use on the Potential Market for the Work

This factor asks what would happen if everyone did what the defendant did and whether that would cause substantial economic harm to the plaintiff by materially impairing his incentive to publish the work.  The court found this fair use factor easily weighed in defendant’s favor.  In fact, the plaintiff profoundly disliked the photo and did not want it published anywhere at any time.  According to the court, because Katz used copyright law to squelch defendant’s criticism of him, there was no potential market for the photo.

Afterword:

Since three of the four fair use elements weighed in favor of the defendant, the court found that her use of the plaintiff’s photo was a fair use and immune  from copyright infringement liability.

This case provides a useful detailed summary of the four fair use factors along with instructive analysis of each factors sub-parts.  The Katz case is especially pertinent to anyone facing a copyright claim predicated on a claimed infringing use of a Google images photograph used to enhance on-line content.

 

 

 

 

 

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PaulP

Litigation attorney at Fisher Kanaris, P.C. representing businesses and individuals in all types of commercial disputes.