Tag: photograph

Facebook Not Subject to Illinois Long-Arm Jurisdiction For Its Photo “Tagging” Feature – IL ND

Surely something as culturally pervasive as Facebook, arguably the Alpha and Omega of social media, is subject to personal jurisdiction in Illinois (or anywhere else for that matter). Wouldn’t it? After all, with over a billion monthly users1 and some 350 million photos uploaded to it daily 2, Facebook’s electronic reach is virtually limitless (pardon the pun).

Wrong – says an Illinois Federal court.  In what will be welcome news to on-line merchants the world over, the Northern District of Illinois recently dismissed a privacy lawsuit filed against the social media titan by an Illinois resident for lack of personal jurisdiction.

The plaintiff in Gullen v. Facebook, Inc., 15 C 7681 3 , http://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv07681/314962/37/0.pdf?ts=1453468909 sued under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq.   The plaintiff claimed Facebook’s “tag suggestion” feature which culls uploaded photos for facial identifiers, invaded plaintiff’s BIPA privacy rights.

Granting Facebook’s motion to dismiss, the Court gives a useful primer on what a plaintiff must allege to establish an arguable basis for personal jurisdiction over a nonresident corporate defendant.

– Federal courts sitting in diversity may exercise personal jurisdiction over a nonresident defendant only if the forum-state court could do so.  Illinois courts can exercise jurisdiction over a nonresident defendant on any basis sanctioned by the Illinois Constitution or the U.S. Constitution;

– For a court to exercise specific personal jurisdiction over an out-of-state defendant, the court looks to whether the defendant has minimum contacts with the forum State and if those contacts create a substantial connection with the forum State;

– In addition, the contacts with the forum must be initiated by the defendant itself and the mere fact that a defendant’s conduct affected a plaintiff who has a connection to the forum isn’t enough for jurisdiction over the nonresident defendant;

– In an intentional tort case, the court looks at whether the defendant (1) engaged in intentional conduct, (2) expressly aimed at the forum state, and (3) had knowledge that the effects of his conduct would be felt in the forum state;

– With intentional torts, the fact that a plaintiff is injured in Illinois can be relevant on the jurisdiction  question but only if the defendant has “reached out and touched” Illinois: if the defendant’s conduct does not connect him with Illinois in a meaningful way, jurisdiction over a non-resident won’t lie in Illinois.

– A website’s interactivity however, is a “poor proxy” for adequate in-state contacts.  So just because a website happens to be accessible to anyone with an Internet connection (basically, every person on the planet) doesn’t open the website operator to personal jurisdiction in every point of the globe where its site can be accessed.4

In arguing that Facebook’s electronic ubiquity subjected it to Illinois jurisdiction (A Federal court sitting in diversity looks at whether the forum state (Illinois) would have jurisdiction over the non-resident defendant)), the plaintiff catalogued the social media Goliath’s contacts with Illinois: (1) Facebook was registered to do business here, (2) it had an Illinois sales and advertising office, and (3) Facebook applied its facial recognition technology to millions of photo users who are Illinois residents.

The court rejected each of these three contacts as sufficient to confer Illinois jurisdiction over Facebook for the plaintiff’s privacy-based claims.  For contacts (1) and (2), the lawsuit didn’t involve either Facebook’s status as an Illinois-registered entity or its Illinois sales and advertising office.  With respect to contact (3) – that Facebook collected biometric information from Illinois residents – the Court found this allegation false.

The Court noted that since Plaintiff alleged that Facebook used the recognition technology in all photos – not just in those uploaded by Illinois users – Facebook’s global use of the technology was not enough to subject Facebook to Illinois court jurisdiction.

Afterwords:

Gullen’s fact-pattern is one most of the world can relate to.  It intersects with and implicates popular culture and national (if not global) privacy concerns in the context of an ever-present and seemingly innocuous photo tagging feature.  The case presents a thorough application of “law school” territorial jurisdiction principles to a definitely post-modern factual context.  This case and others like it to come, cement the proposition that wide-spread access to a Website isn’t enough to subject the site operator to personal jurisdiction where it doesn’t specifically focus its on-line activity in a particular state.

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1 http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

2 http://www.businessinsider.com/facebook-350-million-photos-each-day-2013-9

3 http://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv07681/314962/37/0.pdf?ts=1453468909

4. See Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010), Walden v. Fiore, 134 S.Ct. 1115 (2014).

“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.