Fair Use Decisions by Month, 1/1/2019 through 9/30/2024
Since 2021, the IPAT Clinic has been taking a deep dive into fair use. We have looked at every written judicial opinion that discussed fair use since the beginning of 2019, and made them available in a searchable, sortable database with abstracts and commentary, and links to copies of every single case. This resource has been used by scholars, students, and attorneys across the country, and cited by major treatises.
In celebration of Fair Use Week 2023, we updated the Fair Use Jurisprudence Project and conducted a webinar to analyze and present another year’s worth of fair use cases, and we presented further analysis on this site.
We have now fully updated the database to include every case from 2019 to the present. The database now includes 252 entries documenting how courts have assessed fair use throughout the United States over the last five-plus years. Going forward, we will be updating this resource on a weekly basis.
Check back weekly for new case abstracts!
Current database coverage: January 1, 2019 – July 29, 2025
| Case Name and Citation | Date | Abstract | Procedural Posture | Fair Use Determination | Circuit | Court | Authorship Category | Subcategories |
|---|---|---|---|---|---|---|---|---|
| HH Advertising, Inc. v. Unique Vacations, Inc, No. 23-24073-CIV, 2025 WL 2027556 (S.D. Fla. July 21, 2025). | 07/21/25 | Plaintiff is an advertising agency that for decades exclusively served Sandals Resorts and associated entitites. After firing the agency, Defendant refused to take down hundreds of Plaintiff's photographs and videos that remained on Defendant's website. After a bench trial, the court in its Findings of Fact and Conclusions of Law rejected the Defendant's fair use defense, holding that Defendant's use was highly commercial and not transformative, the photos were creative, and the entire work was often used, but that there was not much of a market for Plaintiff's photos of Sandals resorts. | Bench Trial | Not fair use | 11th | S.D. Fla. | Pictorial, graphic, and sculptural works | Photograph |
| Concepts NREC, LLC v. Xuwen Qiu, No. 5:20-CV-133, 2025 WL 2052132 (D. Vt. July 21, 2025). | 07/21/25 | Plaintiff software company sued a former employee for vioolating terms of employment and developing a competing software product created to assist with the turbomachinery design process. On defendant's motion for summary judgment, as to fair use the magistrate judge recommended denial and found that disputes of fact issues existed with respect to fair use in numerous respects. In addition, Defendant's refusal to provide a large part of its software code in discovery created an issue of material fact in the extent of finding the similiarites and differences between the Plaintiff's software and the Defendant's code. | Defendant's motion for summary judgment | Fair use not determined | 2d | D. Vt. | Literary works | Software |
| Advanced Medical Technology Association v. Library of Congress, No. CV 22-499 (BAH), 2025 WL 2029804 (D.D.C. July 21, 2025). | 07/21/25 | Medical device trade association challenged copyright exemption promulgated by Librarian of Congress after a fact-intensive rulemaking process managed by the Register of Copyrights under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C.A §1201(a). The Librarian found that “use of embedded computer programs and related data files for diagnosis, maintenance, and repair of medical devices” was noninfringing and therefore qualified for an exemption because it was a fair use. Medical device manufacturers sued, and the district court held that the Librarian of Congress was protected by sovereign immunity. The D.C. Circuit reversed, holding that Librarian is subject to the APA. 103 F.4th 830 (D.C. Cir. 2024). On remand, the district court upheld the Librarian’s fair use conclusion using the APA’s standard of review rather than the more restrictive de novo review. The court held that the use in question, while commercial, was transformative because use for “diagnosis, maintenance, or repair serves a different function than the original code does—by expanding its usefulness rather than replacing it,” and did not require actual transformation or manipulation of the work. Furthermore, the Librarian “reasonably concluded that in this case, the software code itself and the ancillary materials are informative, factual, and functional rather than expressive in nature, favoring fair use.” As to amount and substantiality, “sometimes diagnosis, repair, and maintenance will require copying large portions of the software code or other materials in their entirety, but because its purpose is transformative, this factor does not weigh against fair use.” Finally, because medical device software and data files generally do not have value separate from the equipment, the market harm was minimal and the secondary market for diagnosis and repair depends not on the copyrighted materials, but on the “labor, creative analytics, and expertise” of those using the exemption, and copyright does not confer a monopoly on the market for services that “support the functioning of their machines.” (Ed. note: we are including this case in the Fair Use Jurisprudence Project database because it concerns the triennial exemption process outlined in 17 U.S.C. § 1201(a), which is intended to ensure that the anticircumvention provisions in Section 1201 are compatible with fair use and other non-infringing uses. This decision marks the first time in the 25-year history of this rulemaking process that a court has substantively reviewed a fair use determination made by the Librarian, except perhaps for Green v. United States Dept. of Justice, 111 F.4th 81 (D.C. Cir. 2024).) | Cross-motion for summary judgment | D.C. | D.D.C. | Other | Other | |
| T. Eric Monroe v. Northstar Source Grouo , No. 1:23-CV-06220, 2025 WL 1939027 (S.D.N.Y. July 15, 2025). | 7/15/2025 | Plaintiff is a professional hip hop photographer who displayed photos on a website including his signature mark inside a red box. Defendant are the publisher and affiliaate of The Source magazine which was alleged to have posted Plaintiff's photos on Instagram and cropped out his signature mark. On summary judgement, the Court denied the fair use defense. Defendants contended their use "was transformative because it recontextualized the images to highlight their historical and cultural significance through hashtags such as #sourceclassics and #throwback." However, the court held that merely posting with hashtags and not critiquing , commenting on, or otherwise transforming the photos, "falls short of the transformative threshold; rather, it amounts to exploitation of Monroe's original creative work for the same purpose, which is to display images of iconic hip-hop artists" The court granted Plaintiff's motion for summary judgment as to fair use. (Ed. note. The facts of this case are almost identical to Shihab v. Source Digital, Inc., which was in the same district court and had the same outcome--and the same attorneys, including Doniger/Burroughs for the Plaintiff.) | Plaintiff's motion for summary judgment | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Zlozower v. Rock and Roll Hall of Fame and Museum , No. 1:24CV1817, 2025 WL 1822570 (N.D. Ohio July 2, 2025). | 7/2/2025 | Plaintiff is a rock photographer who owns the rights to a photgraph of Eddie Van Halen's guitar. Defendant is a museum operator who used the Plaintiff's photograph as part of a large display at the museum to celebrate influential musical instruments. Plaintiff moved to amend his complaint to include an additional photo allegedly used by Defendant in the same exhibit. Defendant opposed the motion on the grounds of futility given its fair use defense. The court granted the motion to amend and denied Defandant's motion for judgment on the pleadings as moot. The court reasoned that fair use could not be decided at the pleading stage due to the fact that it is in dispute whether the Defendant's use of the photographs was of commercial nature or whether there was potential market for licensing the Plaintiff's works to museums. (Ed. note: This case is strongly reminiscent of Marano v. Metropolitan Museum of Art, 844 F. App'x 436 (2d Cir. 2021), which also involved a photograph of Eddie Van Halen's guitar. In addition, both cases involve notorious "frequent filers," the Liebowitz law firm and its successor the Sanders Law Group. In this case, and unlike Marano, two photographs are involved, not one. In addition, of course, the way the museum in this case used the photo may differ from the way the museum in Marano used it. When the fair use issue comes up again, the court should consider the guidance in Justice Gorsuch's concurrence in Warhol that use "in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use." Unliike in Warhol, this was not a licensed use that got out of hand, nor was the allegedly infringing work licensed out, or even used in a commercial context.) | Motion for judgement on the pleadings | Fair use not determined | 6th | N.D. Ohio | Pictorial, graphic, and sculptural works | Photograph |
| Kadrey v. Meta Platforms, No. 23-CV-03417-VC, 2025 WL 1752484 (N.D. Cal. June 25, 2025). | 6/27/2025 | A group of prominent fiction writers sued Meta for downloading their books without payment and using them to train its generative AI model Llama. The model is configured to "regurgitate" no more than 50 words from any specific book at issue. The court granted summary judgment for Meta. The court held the use is highly transformative, so much so that it outweighed the massive expected commercial revenues from the use of this tool, and "[b]ecause Meta's ultimate use of hte plathniffs' books was transformateive, so too was Meta's downloading of those books." The "nature of the copyrighted work" factor favored plaintiffs because Meta's use of the books "does depend on the books' creative expression." The "amount and substantiality" factor favored Meta even though it copied the entire works because the amount copied "was reasonable given its rletionship to Meta's transformative purpose." On the market factor, the court held that was no direct subsitution because the tool does not reproduce the work, and there was not harm to the licensing market becuase "this market is not one that the plantiffs are legal entitled to monopolize" in light of the transformative use. The court identified, and devoted very lengthy, discursive analysis to, a third potential market harm: "market dilution" or "indirect substitution," suggesting that this is actionable, but still found for defendant because plaintiffs had not pled that type of market harm, much less provided evidence sufficient to warrant summary judgment. In a subsequent order, the court granted Defendant Meta's motion for partial summary judgment on DMCA § 1202 claim for removal of copyright management. The court noted that "the Copyright Act provides that anything that is a fair use 'is not an infringement of copyright....So because Meta's copying was not an infringement, its removal of CMI could not have furthered an act of infringement." [Ed. note: Judge Chhabria devoted many pages to the market dilution/indirect substitution theory, strenuously arguing in favor of what he called a "potentially winning argument--that Meta has copied their works to create a product that will likely flood the market with similar works, causing market dilution." Ultimately the court indicated it had "no choice but to grant summary judgment to Meta," but also made clear that this ruling does not mean Meta's use of copyrighted materials was lawful; rahter, "only...that these plaintiffs made the wrong arguments and failed to develop a record in support of the right one."] | Defendant's motion for summary judgment | Fair use | 9th | N.D. Cal. | Literary works | Other |
| Bartz v. Anthropic PBC, No. C 24-05417 WHA, 2025 WL 1741691 (N.D. Cal. June 23, 2025). | 6/23/2025 | Plaintiffs are book authors. Defendant Anthropic created a generative AI product in part by copying Plaintiffs' books from pirated and purchased sources and assembled the copies in a central library of its own. The copies were cleaned, tokenized, and compressed into a trained large language model. The Court found the copies used to train LLMs to generate new text was transformative--"spectatularly so"--as well as the format change of purchased library copies from print to digital copies. The Court found that pirating copies disfavored the first factor of fair use, and paying for the copies after stealing them would not undue the initial act of copying. The Court also found that the Defendant copied the expressive elements of the books and that the books were chosen for their expressive qualities. It was not fair use to use pirated books in Defendant's library or train the LLM, but using purchased books to train the LLM and keep in Defendant's library was fair use. Defendant's motion for summary judgment granted in part and denied in part. A few weeks after this decision the court certified a "Pirated Books Class" comprising rightholders in books that were in the LibGen and Pirate Library Mirror libraries used by Anthropic. Bartz v. Anthropic BC, No. C 24-05417 WHA, 2025 WL 1993577 (N.D. Cal. July 17, 2025). | Defendant's motion for summary judgment | Fair use | 9th | N.D. Cal. | Literary works | Other |
| Ruby mountain Heli-Ski Guides v. SledNV, Inc, No. 3:24-cv-00211-MMD-CSD, 2025 WL 1587808 (D. Nev. June 5, 2025). | 6/5/2025 | Plaintiff operates a ski guiding service. Defendant went on a ski trip guided by Plaintiff, then without permission used a photo of another guest on the trip, taken by Plaintiff, on Defendant's own ski trip website, and also displayed copyright notices on website. The Court awarded summary judgement for the Plaintiff, holding that the use of the photo was not fair use because posting the photo was a competition against the Plaintiff that provided the service because it was posted for the same commercial purpose. | Plaintiff's motion for summary judgement | Not fair use | 9th | D. Nev. | Pictorial, graphic, and sculptural works | Photograph |
| Romanova v. Amilus Inc, 138 F.4th 104 (2d Cir. 2025). | 5/23/2025 | Plaintiff is a professional photographer and owns the copyright to a photograph of a woman with pet snakes wrapped around her body. Defendant owns a website and posted an article entitled "Trending: Dogs, Cats . . . and Other Pets to Start off 2018." The Article included the Photo and nine other photographs of pets. The Photo was originally licensed to the National Geographic for an article titled "Intimate Photos of People and Their Beloved Pet Snakes." Even though defendant failed to appear, the district court dismissed the complaint, holding Defendant's use of the Photo was transformative because the article was focused on the general trend of pet photography, rather than specifically highlighting snakes as domestic pets, and also found Defendant's use of the photograph was in a different market than the Photo's original purpose. On appeal, the Second Circuit reversed. Defendant copied the photograph for commercial purposes, the message the photograph sends by the Plaintiff was replicated by the message communicated by the Defendant’s copy and no justification for the use was evident in the complaint, and the Defendant copied the entirety of the photo. (Ed. note: This lengthy opinion by Judge Pierre Leval, on whose scholarship the "transformative use" doctrine articulated in Campbell was based, interpreted the Warhol opinion's comments on fair use, and provided numerous examples of fair use justifications. This case has an unusual posture. The defendant failed to appear, but the court still dismissed the case sua sponte/. We suspect this has something to do with the fact htat it was brought by the Sanders Law Group, which reportedly took over the infamous Richard Liebowitz's firm and has been accused of being a copyright troll.) | Other | Not fair use | 2d | 2d Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Global Weather Productions v. Dicaprio , No 2:23-cv-09279-ODW (SSCx), 2025 WL 1383547 (C.D. Cal. Apr. 4, 2024). | 4/4/2025 | Plaintiff is a professional videography company that created a video showing aerial footage of Hurrican Dorian's damage to The Bahamas' Great Abaco Island. Defendant Leonardo DiCaprio posted an exact copy of the video on his Instagram account for the purpose of raising awarneess about climate change. The Court denied Defendant's motion to dismiss because material facts were in dispute, including the purpose for which DiCaprio posted the work, and the overall context of his Instagram account. | Motion to dismiss | Fair use not determined | 9th | C.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Gwinn v. City of Chicago, No. 23 CV 1823, 2025 WL 964089 (N.D. Ill. Mar. 31, 2025). | 03/31/25 | Plaintiff freelance photojournalist's video of a protest was used by Defendant city police department at a press conference and on their YouTube channel without permission or credit. On cross-motions for summary judgment, the court ruled Defendant's use was not fair primarily because it used the footage for the same purpose for which Plaintiff was licensing it: "to document and inform an audience about the factual events that occurred." The court also held for the plaintiff on all other factors except factor 2, "nature of the use." Plaintiff's motion for summary judgment was granted. (Ed. note: if the city had merely commented on the footage in its press conference, it would have had a strong fair use argument. However, the city also distributed the work to news organizations and posted it on its YouTube channel.) | Plaintiff's motion for summary judgment; Defendant's motion for summary judgment | Not fair use | 7th | N.D. Ill. | Motion pictures and other audiovisual works | Motion picture |
| Concord Music Group v. Anthropic PBC, F. Supp. 3d (N.D. Cal. 2025). | 03/25/25 | Defendant scraped Plaintiff's music to train its generative AI. The Court declined to grant Plaintiff preliminary injunction, reasoning that "it is an open question whether training generative AI models with copyrighted material is infringement or fair use. By seeking a preliminary injunction, Publishers are essentially asking the Court to define the contours of a licensing market for AI training where the threshold question of fair use remains unsettled. The Court declines to award Publishers the extraordinary relief of a preliminary injunction based on legal rights (here, licensing rights) that have not yet been established." | Preliminary injunction | Fair use not determined | 9th | N.D. Cal. | Literary works | Miscellaneous literary work |
| Wilder v. Hoiland No. 24-1436, 2025 WL 783642 (2d Cir. Mar. 25, 2025) (summary order). | 03/12/25 | Plaintiff Wilder, a faculty member at Lehman College of the City University of New York sued Defendant Hoiland, a faculty member at CUNY's Hostos Community College, alleging Defendant infringed on Wilder's copyright in the text of a research project on teaching quantitative reasoning authored by the plaintiff, by including portions of it in a powerpoint presentation Hoiland gave at the Community College Conference on Learning Assessment (the CCCLA). On summary judgment, the court held that Hoiland's use was fair, as the purpose and character of the use was transformative: Wilder's intent in making the material was to "teach faculty at CUNY about the best practices for infusing quantitative reasoning into their courses, and assessment of instruction," while Hoiland's was to “disseminate assessment results of [the] ... faculty development program,” “discuss the challenges and successes related to assessment in the community college context,” and “share best practices in faculty development related to assessment” and the use of the material did not constitute a "significantly competing substitute." The court did note that Hoiland used a significant portion of Unit 7H in the presentation despite not using the heart of the work. Ultimately, the court granted Defendant’s motion for summary judgment, condlucing that her use of the Unit 7H Text was fair use as a matter of law. The Second Circuit affirmed on appeal, calling this a “paradigmatic example of transformative use.” Affirming Wilder v. Hoiland, 2024 WL 382141 (S.D.N.Y. Feb. 1, 2024). | Defendant's motion for summary judgment | Fair use | 2d | 2d Cir. | Literary works | Miscellaneous literary work |
| Cobb v. Am. Urb. Radio Networks LLC, No. 24 CIV. 1305, 2025 WL 641437 (S.D.N.Y. Feb. 27, 2025). | 02/27/25 | Defendant radio network used Plaintiff photographer's aerial photo of Evanston, IL in a news article about that city. The court denied Defendant's motion to dismiss, finding the first and fourth factors favored plaintiff; in particular, the court held that Defendant's use "as an 'illustrative aid' to its news article about income inequality in Evanston" was not transformative. (Ed. note: The court here considered bad faith and held that this sub-factor favored plaintiff, without mentioning the Supreme Court's remarks in Google v. Oracle reaffirming Campbell's "skepticism" about "whether bad faith has any role in a fair use analysis.") | Motion to dismiss | Likely not fair use | 2d | S.D.N.Y. | Literary works | Photograph |
| Davidson v. Blankenship Dry Goods LLC, No. 24-CV-7544 (AS), 2025 WL 486623 (S.D.N.Y. Feb. 12, 2025). | 02/12/25 | Defendant company used Plaintiff's aerial photograph of Manhattan to sell its wares; Defendant had also cropped out Plaintiff's watermark. On motion to dismiss, Defendant argued that its use of the photo was transformative because it was used to help customers visualize the location that the photo was of, and because Defendant had added a caption. The Court denied Defendant's motion, because rather than using the photo to inform viewers about the location, it was used "to make Blankenship's products more attractive to customers, not merely to inform them about the contours of Manhattan's cityscape." | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Thomson Reuters Enter. Ctr. GMBH v. Ross Intel. Inc., No. 1:20-CV-613-SB, 2025 WL 458520 (D. Del. Feb. 11, 2025). | 02/11/25 | Legal research platform Westlaw brought action for copyright infringement alleging that Defendant used Westlaw's headnotes to train its artificial intelligence-based legal research tool. The court initially held that there was clearly a triable issue of fact, and therefore the motion for summary judgment was denied. On further review, the Court revised its opinion and granted partial summary judgment. The Court ruled that Defendant had simply copied Plaintiff's headnotes for commercial use, with the intent of competing with Plaintiff in the market. The court held that the headnotes, while mainly factual, contained enough protectible expression to establish protectability. (Ed. note: this is the first decision in the Fair Use Jurisprudence Project database in which a court considered fair use in the context of the use of copyrighted material as training data for chat-based AI. The court subsequently certified this question for interlocutory appeal and stayed the litigation pending the appeal.) | Plaintiff's motion for summary judgement | Not fair use | 3d | D. Del. | Literary works | Educational Materials |
| Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 126 F.4th 589 (8th Cir. 2025). | 01/14/25 | Plaintiff is a home designer, who built six homes using the design or variation of a triangular atrium and stairs. Defendants listed Plaintiff’s triangular atrium homes for resale, and included the floorplans for the homes in the listing. Plaintiff registered copyrights in the design. The district court granted summary judgment for defendants. The Eighth Circuit affirmed. The first factor weighed in favor of fair use because the floorplans had an “informational purpose,” in presenting the layouts and dimensions of the homes to potential buyers. In contrast, the purpose of the original design was to construct the homes. The court held that the commerciality of the use counterbalanced its transformativeness only in part, because Defendant only used the floorplans for existing homes to resell them, and First Sale Doctrine allowed homeowners to resell their homes without acquiring the consent of the copyright owner as long as the homes were “lawfully made.” The court emphasized that Defendants’ failure to take down the floorplans does not change the purpose and character of the use. The second factor weighed slightly against fair use because the Defendant did copy some artistic features from Plaintiff’s designs, but this does not significantly weigh against a finding of fair use. In deciding this factor, the court noted that courts do not consider whether the work is published or not, instead, court looked at “whether a use of a work deprives the work’s owner of control over the first public appearance of its expression.” Here, no homeowners’ right to make their home accessible by the public is restricted. The third factor does not heavily favor or disfavor a finding of fair use because Defendants could not effectively share the layouts to the potential buyers without copying Plaintiff’s design features, and the floorplans did not include all three-dimensional aesthetic features. The floorplans might substitute other floorplans of the design, but Plaintiff is not in the market for floorplans. The fourth factor favors a finding of fair use because floorplan is not a substitution for Plaintiff’s existing markets for home designs. Although Plaintiffs claimed harm to its potential markets for licensing and for floorplans used outside of resale listing, Plaintiff never have “licensed, intend to license, or tried to precent the licensing of such floorplans . . . .” Therefore, the court affirmed the district court’s grant of Motion for Summary Judgment for Defendants. See also Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021) | Other | Fair use | 8th | 8th Cir. | Architectural works | Design |
| Lynk Media LLC v. Mediaite, LLC, No. 24-CV-29 (PKC), 2025 WL 89226 (S.D.N.Y. Jan. 14, 2025). | 01/14/25 | Plaintiff licenses videos to online use and print publications. Defendant is an online news and media organization. Defendant published several news articles reporting protests and heckling at AOC events and protest and physical altercation outside Gracie Mansion. The articles contain three videos to which Plaintiff owns copyrights. In its articles, Defendant also included Twitter posts that previously published Video 2 and Video 3. On Defendant’s motion to dismiss, the court held that the court is unable to determine whether Defendant’s use is fair use. For the third factor, the court stated that Plaintiff’s allegation that Defendant used “discernible segments of the critical portions” of the videos as well as the screenshots of Defendant’s articles, which only contained still frame images, do not enable the court to determine the precise amount that Defendant used. Defendant’s motion to dismiss was denied. (Ed. note: the court here joined other opinions in the S.D.N.Y. rejecting the Ninth Circuit’s “server test,” and also held that X’s Terms of Service are not clear enough to warrant a motion to dismiss on the grounds that the X re-posts were licensed uses.) | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Other |
| Richardson v. Townsquare Media, Inc., No. 24 CIV. 4217 (AKH), 2025 WL 89191 (S.D.N.Y. Jan. 14, 2025). | 01/14/25 | Plaintiff, a professional videographer, claimed Defendant owner of online news and entertainment publication XXL infringed its copyright by twice posting screenshots and embedded videos in news articles about the videos. One video was posted on X by a third party, after which Defendant posted an article on its website with a screenshot of the video, describing the video’s content, reporting additional information about the video, and embedding the X post containing the video. On Defendant’s Motion for Judgment on the Pleadings, the court held Defendant’s use was fair use. The first factor favored fair use because the video was the subject of the news story and the article contained new information and context of the video. The second factor favored fair use because the video was published online and presented “factual and newsworthy events.” The third factor favored fair use “because it embedded the DailyLoud X post which contained the video in its entirety, Townsquare could not reasonably have copied only a portion of the video.” In addition, Defendant’s copying of the entire video was “necessary to convey information to the public accurately.” The fourth factor favored fair use because news articles has a different purpose from the original video. Moreover, the video was embedded in the X post, with additional text and images surrounding the video. Thus, Defendant’s use was unlikely to affect the market of Plaintiff’s video. Defendant’s Motion for Judgment on the Pleadings was granted. (Ed. note: The court did not address whether the embedded video, which was apparently hosted on X’s servers at all times, constituted an infringing display. Several opinions in the Southern District of New York have now rejected the Ninth Circuit’s “server test," and this court appears to have done the same without commentary. However, the court could easily have concluded that this was a licensed use given the extremely broad language in X’s terms of service, as it did with respect to another video at issue in this case posted on YouTube. One complicating factor is that the X video was posted by a third party, whereas the YouTube video was posted by plaintiff. The court also held that “single still-frame screenshots from videos posted on social media platforms, which make up a very small fraction of the original video, are generally considered to constitute de minimis use and fall below the substantial similarity threshold.”) | Motion for judgement on the pleadings | Fair use | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Other |
| King Spider LLC v. Panda (Hong Kong) Tech. Co., No. 24-CV-2668 (JGLC), 2025 WL 89123 (S.D.N.Y. Jan. 14, 2025). | 01/14/25 | Plaintiffs, a group of luxury brands sued an online shopping platform Pandabuy that enable users to purchase goods from third-party Chinese online shopping platforms in China. Users copy the product's link from the third-party Chinese platform, paste it into Defendant’s website, then are connected with a shopping agent company and warehouse service provider. Plaintiffs alleged that Defendant infringed their copyrights by listing counterfeit version of Plaintiffs’ products on Defendant’s website. On Defendant’s Motion to Modify or Dissolve the Preliminary Injunction, the court found that the Defendant’s “display” of Plaintiff’s product is fair use, citing Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) in which Google’s display of thumbnail images as a result of users’ search terms is fair use. Here, the court stated that the display of images on Defendant’s website is similar to Google’s display because they are generated “entirely from algorithmic and user driven behavior.” Defendant’s Motion to Modify or Dissolve the Preliminary Injunction was granted as to one of hte plaintiffs' copyright claims. | Preliminary injunction | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Capitol Recs., LLC v. Vimeo, Inc., 125 F.4th 409 (2d Cir. 2025). | 01/13/25 | Plaintiff (record and music companies) alleged copyright infringement of musical recordings used in 199 videos that appeared on Defendant's (Vimeo's) website. DMCA § 512 provides a safe harbor that protect service providers from liability for infringement when users upload infringing material onto the providers’ websites absent actual or "red flag" knowledge that the material is infringing and failure to take it down, or the right and ability to control the material financial benefit as a direct result of the activity. The court held that Plaintiff, in addition to demonstrating "red flag" knowledge, also needed to show it is apparent to a person, with or without specialized knowledge of copyright law, that the use of the music recoding was not fair use. The mere facts that Defendant told its employee not to include copyrighted music in their videos and Defendant’s announcement to its user that including copyrighted music in their video “generally (but not always) constitutes copyright infringement” does not suggest that Defendant’s employee is able to determine fair use, given that even copyright experts and Supreme Court justices can disagree on whether certain uses are fair . Therefore, the court refused to find that it was “apparent” to Defendant’s employees that the uses of Plaintiff’s music recording were not fair use. Affirming Capitol Records, LLC v. Vimeo, LLC, No. 09-CV-10101 (RA), No. 09-CV-10105 (RA), 2021 WL 2181252 (S.D.N.Y. May 28, 2021). | Other | Other | 2d | 2d Cir. | Sound recordings | Sound recordings |
| Davidson v. 925 LLC, No. 23-CV-09891-NSR, 2025 WL 35039 (S.D.N.Y. Jan. 6, 2025). | 01/06/25 | Plaintiff is a professional photographer who takes aerial photography. Plaintiff registered the photograph at issue under a group copyright registration. The photograph is an aerial shot of the headquarter of Apple, Inc. in Silicon Valley during night time. The purpose of the photograph was “for editorial commentary on Silicon Valley, and for licensing to news and media organizations.” Plaintiff alleged that Defendant copied the photograph to advertise and promote Defendant’s business. On Defendant’s motion to dismiss, the court held that Defendant’s argument of fair use is “premature at this stage” because the fair use defense is not clearly established to the extent to support dismissal. The court also noted that the Second Circuit frequently held that the determination of fair use during motion to dismiss is not appropriate because of its fact-intensive nature. | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Zhao v. BABIQIU, No. 23 C 4507, 2025 WL 36213 (N.D. Ill. Jan. 6, 2025). | 01/06/25 | Plaintiff is the creator and copyright owner of a video that instruct the use and safety of a SHAR POTS fire extinguisher in order to promote the brand. The video contained Chinese subtitles. Defendants sell fire extinguishers on Amazon, and included an excerpt from Plaintiff's video in the product listing. Defendants shortened the video and added English subtitles. On Plaintiff's motion for summary judgment, the court held that no reasonable jury could find Defendants' use was fair use. The first factor weighed against fair use because the use was commercial, and the purpose of Defendants‚Äô use was to increase the sales of their product by emphasizing the product's safety features. Defendant argued that use of English subtitles was transformative by providing educational and functional information about the product to English-speaking consumers, but the court stated that the translation did not alter any purpose of the use: to sell fire extinguishers. The court held the second factor weighed against fair use: even if the video had a ‚ "factual, instructional nature," the court held the video contained many creative choices. The third factor weighed against fair use because Defendants did not make any edits and unnecessarily took the creative aspects of the video. The fourth factor weighed against fair use. Defendants argued that there was no evidence that the use diverted fire extinguisher sales, but the court reasoned ‚Äúwidespread use‚Äù by Defendants would have a ‚Äúsubstantial adverse affect‚Äù on the market for Plaintiff‚Äôs video. Plaintiff‚Äôs motion for summary judgement was granted in part and denied in part. | Plaintiff's motion for summary judgement | Not fair use | 7th | N.D. Ill. | Motion pictures and other audiovisual works | Motion picture |
| Levy v. Kilgore, No. 1:23-CV-559-DII, 2025 WL 44151 (W.D. Tex. Jan. 6, 2025). | 01/06/25 | Defendant, a local politican running for reelection, sent DMCA notices that took down Plaintiff's online videos of Defendant from city council meetings. Plaintiff argues that he uploaded the videos to inform voters, and Defendant argues that he had a subjective good faith belief that he has a copyright on the footage. Plaintiff and Defendant's motions for summary judgment were both denied by the Court. | Cross-motion for summary judgment | Fair use not determined | 5th | W.D. Tex. | Motion pictures and other audiovisual works | N/A |
| Channel 781 News v. Waltham Cmty. Access Corp., No. 24-CV-11927-PBS, 2025 WL 35245 (D. Mass. Jan. 6, 2025). | 01/06/25 | Channel 781 News posted clips of Waltham, MA city council meetings, which are excerpts from Waltham Community Access Corp.'s ("WCAC") full meeting recording. WCAC requested YouTube take down of Channel 781's videos, alleging copyright infringement. Youtube took down Channel 781's videos and disabled its channel temporarily. Channel 781 alleged its use of the video clips constitute fair use, and sued under 17 U.S.C. §512(f) “for knowingly and materially misrepresenting in its takedown notices that [Plaintiff’s] videos were infringing.” On WCAC's Motion to Dismiss, it claimed Channel 781 had not plausibly pled that the videos were fair use. The court disagreed; Channel 781 stated that WCAC's recording are “factual records” without “creative expression,” whereas Channel 781's video clips “reflect editorial judgments about newsworthy segments,” and neither party is a for-profit organization. The court concluded that fair use at this stage is plausible. WCAC also claimed that Channel 781 had not plausibly pled a knowing misrepresentation claim. The court disagreed, because Channel 781 alleged WCAC had stated it would act against people who used its content to “score political points” or “encourage residents to hate.” WCAC also stated that “any use of the clips by Channel 781 required permission,” and WCAC was more open to Channel 781's use of the excerpts if Channel 781 used them to report facts instead of expressing ideas. Thus, the court held that Channel 781 had adequately pled the claim. WCAC's motion to dismiss was denied. [Ed. note: a rare action brought under Section 512(f) of the DMCA. Thus the unusual posture in which the plaintiff is arguing that there was fair use, and the defendant is arguing that there was not fair use. The nonprofit Electronic Frontier Foundation represented plaintiff, as in the important 512(f) case Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015).] | Motion to dismiss | Likely fair use | 1st | D. Mass. | Motion pictures and other audiovisual works | Motion picture |
| Breeden Media LLC v. Daily Wire, LLC, No. 3:24-CV-00723, 2024 WL 5239886 (M.D. Tenn. Dec. 27, 2024). | 12/27/24 | Plaintiff is a professional videography company and commercially licenses its copyrighted video. Defendant is a media company that engages in journalism. Plaintiff alleged that Defendant copied and displayed Plaintiff's copyrighted video on Defendant's website and several social medial platforms without authorization. The court denied Defendant's motion to dismiss. The first factor weighed against fair use because both the Plaintiff and the Defendant used the video for news reporting, and Defendant's use was commercial. Defendant's use was not transformative because it used the video to "illustrate, describe, or report on the events depicted therein," and to criticize the government's immigration policies, and not to contradict the video's point of view or "report on a controversy generated by the video itself." The second factor weighed in favor of fair use because the work is published and factual in nature. The third factor was neutral because the Complaint did not specify the length of the original video and the court did not have a full copy of the video and therefore coudl not rule on this factor. The fourth factor weighed against fair use because the court must accept plaintiff's allegations as true that if the video is widespread, Defendant's use would negatively impact Plaintiff's market for the video; the court found that such harm is plausible. Although Defendant alleged it attributed the video to plaintiff, no evidence showed that such use served as advertisement for Plaintiff. In fact, the court held that when users see the video on Defendant's website, they are unlikely to re-watch the Plaintiff's original video. Moreover, no evidence showed a public lack of access to the information contained in the video. Defendant's motion to dismiss was denied. [Ed. note: It has long been established that copyrighted content can be used to illustrate or demonstrate a point or an argument, just as in a quotation in biographies and other literary works. Though the court was correct to recognize that the purpose of the defendant's use was very similar to the original purpose for which the work was created, especially here where plaintiff is a professional videography company in the business of licensing content, it should have made clear that to make fair use use it is not always necessary to comment directly on the underlying work.] | Motion to dismiss | Not fair use | 8th | M.D. Tenn. | Motion pictures and other audiovisual works | News material |
| Nixon v. Source Digital, Inc., No. 23 CIV. 5218 (JPC), 2024 WL 5202514 (S.D.N.Y. Dec. 23, 2024). | 12/23/24 | Plaintiff is a photographer who took photos of well-known hip-hop artists. Defendant owns the digital platform of a news magazine that focus on hip-hop and urban culture. Defendant posted Plaintiff’s copyrighted photos of famous artists on its Instagram account without Plaintiff’s authorization. On Plaintiff’s motion for summary judgment, the court determined that Defendant’s use was not fair use. The first factor weighed against fair use because Defendant’s use was not transformative and bears commercial nature. The court reasoned that the Instagram post only contained a “short caption and smattering of hashtags.” The alleged commentary that Defendant provided was “razor-thin,” and the caption only provides information regarding the identity of the artists in the photos and the date the photo was taken. Although Defendant claimed that their use presented a unique experience to users by providing cultural context through the usage of hashtags, the court denied this argument because such logic would allow any copying of photographs depicting historically significant figures as long as the infringer included hashtags in the post or the copy happened many years later. Moreover, Defendant’s use was also commercial because Defendant contained the link to its website in its Instagram page, and Defendant would earn advertisement revenue generated at the website. Thus, the more attention Defendant’s Instagram account gets, the higher the probability that the users would access its website. Finally, the court found that Defendant’s good faith is irrelevant to the analysis. The second factor weighed slightly in favor of fair use because the photographs were published prior to the alleged infringing use. Plaintiff did make artistic or creative choices, but at the same time the value of the photographer “stem principally from the subject matter of the photographs.” The third factor weighed against fair use because Defendant copied the entire photographs in non-transformative manner. However, the court noted that because it is difficult for photographs to use “any less while still presenting visually coherent images,” when it comes to photograph, this factor weighs less. The fourth factor weighs against fair use. Defendant has paid to license photographs to be posted on its website, thus, Defendant’s “non-transformative, commercial” use of Plaintiff’s photo “usurped a market that properly belongs to [Plaintiff].” In addition, the court stated that allowing for-profit media organization to free-ride on photographers’ work depicting celebrity would damage photographers right. Although Defendant’s use generated benefit to the general public by increasing the number of people who viewed the photographs and spur, such public benefit does not outweigh the harm to Plaintiff’s market. Plaintiff’s motion for summary judgment granted in part and denied in part. | Plaintiff's motion for summary judgement | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Smith v. Airbnb Inc., No. CV-23-02541-PHX-SMM, 2024 WL 5166340 (D. Ariz. Dec. 19, 2024). | 12/19/24 | Plaintiff registered a domain name using Defendant's company name. Plaintiff argued that he was using the label descriptively, but the Court ruled that he could not be using it descriptively, because he was asserting a property right in the name/label. | Motion to dismiss | Not fair use | 9th | D. Ariz. | Literary works | Miscellaneous literary work |
| Bell v. Kiffin, No. 3:24-CV-231-MPM-RP, 2024 WL 5125159 (N.D. Miss. Dec. 16, 2024). | 12/16/24 | Defendant, a college football coach, posted a tweet of a quote from Plaintiff's book. Relying heavily on the Fifth Circuit's decision in Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313, 318 (5th Cir. 2022), the court granted Defendant's motion to dismiss, on grounds of fair use in cultural conversation and in light of Plaintiff's extensive litigation history. | Motion to dismiss | Fair use | 5th | N.D. Miss. | Literary works | Book |
| Stebbins v. Rebolo, No. 22-CV-00546-JSW, 2024 WL 4982985 (N.D. Cal. Dec. 4, 2024). | 12/04/24 | Plaintiff, a YouTube and Twitch content creator, claimed Defendant online content creators reuploaded his content it or parts of it, which was infringing conduct even where it was to critique his the content in question. Plaintiff also claimed Defendants sent fraudulent DMCA takedown notices on his videos and defendant Registrar of Copyrights wrongfully withheld copyright registrations for some of his content. Plaintiff had previously filed a First Amended Complaint that the Court dismissed on grounds of failure to state a claim, with prejudice. In this Second Amended Complaint, the Court dismissed Plaintiff's civil action for infringment in part on the same grounds: that the cases of critique were fair use (given the primarily informative nature of the clips used and the transformative nature of the critique), and that the works for which Plaintiff failed to obtain registration were not sufficiently creative. However, Plaintiff's claim against Defendant content creator who reuploaded Plaintiff's video in full to react to it, as well as Plaintiff's claim of fraudulent DMCA notices, was given permission to proceed. Plaintiff was warned about unprofessional vitriolic language against Defendants. [Ed. note: this case is worth watching given that "reaction videos" are common on the internet and very often contain substantial commentary.] | Motion to dismiss | Fair use | 9th | N.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Automated Mgmt. Sys., Inc. v. Rappaport Hertz Cherson Rosenthal, P.C., No. 16-CV-04762-LTS-JW, 2024 WL 4987018 (S.D.N.Y. Dec. 4, 2024). | 12/04/24 | Plaintiff makes and licenses software products, including a program called Landlord Tenant Legal System (LTLS) which was licensed to defendants, a law firm. Defendants created a new software platform to replace the LTLS program. Plaintiff asserted copyright infringement and other claims. Defendants moved for summary judgment on fair use, among other grounds. The court found that the plaintiff proffered sufficient evidence from which a reasonable jury could conclude that the defendants committed copying beyond that deemed permissible in previous cases in which "intermediate copying" was permitted for the purpose of making compatible games. However, there was a genuine factual dispute as to whether defendants had to copy plaintiff's software in order to retrieve defendants' own client data. The court denied defendants' motion for summary judgment based on fair use doctrine. [Ed. note: Prior to trial, on plaintiff's motion in limine to preclude evidence in support of a defendant's fair use defense, the court clarified that denial of summary judgement does not preclude assertion of the fair use defense at trial, and confirmed that the court "did not render a final judgment regarding Plaintiff's copyright infringement claims or [certain defendants'] affirmative defenses." Automated Mgmt. Sys., Inc. v. Rappaport Hertz Cherson Rosenthal, P.C., No. 16-CV-04762-LTS-JW, 2024 WL 4987018 (S.D.N.Y. Dec. 4, 2024).] | Other | Fair use not determined | 2d | S.D.N.Y. | Literary works | Software |
| X Corp. v. Bright Data Ltd., No. C 23-03698 WHA, 2024 WL 4894290 (N.D. Cal. Nov. 26, 2024). | 11/26/24 | Social media platform X, formerly known as Twitter, sued a data scraping-company under various state and federal causes of action arising out of or the data scraping of its website by defendant. The court held that the state law cause of action was preempted by the Copyright Act, because prohibiting data scraping would not only prevent unlawful uses of the data, but it would prevent all fair uses as well. [Ed. note: The court later denied the plaintiff's motion to file an amended complaint. X Corp. v. Bright Data Ltd., No. C 23-03698 WHA, 2024 WL 4894290 (N.D. Cal. Nov. 26, 2024).] | Other | Fair use not determined | 9th | N.D. Cal. | Literary works | Other |
| Whyte Monkee v. Netflix, 601 F.Supp.3d 1117 (W.D. Okla. 2022). | 04/27/22 | Plaintiff Whyte Monkee brought suit over Defendant Netflix's use of eight videos in the documentary series Tiger King: Murder, Mayhem and Madness. The district court held that all but one were works made for hire and found for defendant. For that video, the district court granted summary judgment for the defendant on fair use because (1) the use was transformative because it covered the clip with commentary and it shed new light on the events; (2) the clip was more factual than creative; (3) only a small proportion of the total video was used; and (4) Netflix's use of the video would have minimal effect on the potential market for the work. The Tenth Circuit reversed, interpreting the Supreme Court's Warhol decision to mean that to be transformative, the work can only comment on the original composition, and commentary on another subject or a character in that composition was insufficient. The court also held that Netflix's use was commercial and thus weighed against fair use on the first factor. Regarding market harm, the court held that the record had been insufficiently developed and therefore the district court had erred in granting summary judgment. Immediately after the decision, the appellees petitioned for rehearing; the motion was granted and the appellate decision was vacated. Oral argument took place in July 2024. [Ed. note: The UCI Intellectual Property, Arts, and Technology Clinic co-authored two amicus briefs on behalf of filmmaker organizations in support of Netflix's motion for reconsideration. The Panel's "new, restrictive test for fair use," we argued, "will severely disrupt documentary filmmaking by calling many well-established forms of documentary practice into question." Based on oral argument, we think the panel will revise its interpretation of Warhol.] [Ed. note 2: In a separate suit in the Northern District of California, the court granted Netflix's motion to dismiss on claim preclusion grounds in light of the Tenth Circuit litigation. See Whyte Monkee Prods. LLC v. Netflix, Inc., No. 23-CV-03438-PCP, 2024 WL 4876163 (N.D. Cal. Nov. 22, 2024).] | Defendant's motion for summary judgment | Fair use not determined; Fair use | 10th | W.D. Okla. | Motion pictures and other audiovisual works | Motion picture |
| Stebbins v. Rebolo, No. 22-CV-00546-JSW, 2024 WL 4982985 (N.D. Cal. Sept 9, 2024). | 09/23/24 | Plaintiff, a YouTube and Twitch content creator, claimed Defendant online content creators reuploaded his content it or parts of it, which was infringing conduct even where it was to critique his the content in question. Plaintiff also claimed Defendants sent fraudulent DMCA takedown notices on his videos and defendant Registrar of Copyrights wrongfully withheld copyright registrations for some of his content. Plaintiff had previously filed a First Amended Complaint that the Court dismissed on grounds of failure to state a claim, with prejudice. In this Second Amended Complaint, the Court dismissed Plaintiff's civil action for infringment in part on the same grounds: that the cases of critique were fair use (given the primarily informative nature of the clips used and the transformative nature of the critique), and that the works for which Plaintiff failed to obtain registration were not sufficiently creative. However, Plaintiff's claim against Defendant content creator who reuploaded Plaintiff's video in full to react to it, as well as Plaintiff's claim of fraudulent DMCA notices, was given permission to proceed. Plaintiff was warned about unprofessional vitriolic language against Defendants. [Ed. note: this case is worth watching given that "reaction videos" are common on the internet and very often contain substantial commentary.] | Motion to dismiss | Fair use; Not fair use; Fair use not determined | 9th | N.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| New York Times Co. v. Microsoft Corp., 757 F.Supp.3d 594 (S.D.N.Y. 2024). | 09/22/24 | The New York Times alleged Microsoft used plaintiff's news artilces and other content to train Defendant's AI product. OpenAI sought discovery on the Times's own use of generative AI tools, the paper's creation and use of its own generative AI products, and the Times's internal and public comments on generative AI technology. The court held these are "simply not relevant" to OpenAI's fair use defense and the focus should be on OpenAI as the fair use defendant. The court also held tha the "public benefit" analysis in Google did not permis such discovery. [Ed. note: This was a somewhat surprising decision. it is well-established that even if a party has the burden of proof as to a defense, it is entitled to discovery about the other party's conduct if relevant to the defense. It seems likely the Times's own use of generative AI products and its internal communications about the value of generative AI technology similar to that at issue in this case would be highly relevant to whether that technology furthers "copyright's concern for the creative production of new expression."] | Discovery Request | Other | 2d | S.D.N.Y. | Literary works | News material |
Steltzer v. Wang Law Office, PLLC, No. 23-CV-4264 (DLI)(TAM), 2024 WL 4836299 (E.D.N.Y. Nov. 20, 2024). | 09/21/24 | Plaintiff licensed a photograph of Manhattan District Attorney Alvin Bragg in a subway station to the New York Post. The defendant displayed the photo on their law firm website and on a Chinese language business marketing platform. On defendant's motion to dismiss, the court held that defendant had not established a fair use defense as a matter of law. The court held that the use was not transformative as the defendant's use of the "shares the same journalistic purpose as the original" and simply characterizing the use as "news reporting" does not make that use transformative. Defendant claimed the photo was published in an article for "nonprofit educational purposes," but a reasonable jury could find that the defendant was motivated in part to attract clients to its business. The Court could not find that the second factor weighed in favor of fair use as a matter of law without additional fact, while the third factor "clearly weigh[ed] against the application of fair use" since defendant reproduced the entirety of the photo on its website and the marketing platform. Finally, the court held plaintiff had plausibly alleged that defendant's posting of the photo harmed the potential market for the photograph, including "secondary uses" such as licensing that constitute "a market that properly belongs to the copyright-holder." | Motion to dismiss | Not fair use | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Pelino v. Logan, No. 23-1621, 2024 U.S. Dist. LEXIS 200666 (W.D. Pa. Nov. 1, 2024). | 09/20/24 | Defendant Smart Communications, a contracted vendor for the State Correctional Institution at Greene (SCI-Greene), reproduced plaintiff's self-created and copyrighted comic book as part of a mail-processing system in which mail is scanned, digitally stored, reproduced, and sent to the inmates in order to prevent contraband from entering the prison. On defendants' motion to dismiss, a U.S. Magistrate Judge recommended the motion be granted. On the first factor, Pelino alleged no "problem of substitution" of his work. The second and third factors, weighed in favor of Pelino, but when considered against the purpose of copyright generally and the effect of the defendant's use on the value of Pelino's work, Pelino failed to allege a plausible claim for infringement. On the fourth factor, Pelino failed to show "that some meaningful likelihood of future harm exists" from the challenged reproduction of his work for the purposes of delivery to himself; DOC policy requires scanning, delivery, and destruction of all works, original and copied. | Motion to dismiss | Fair use | 3d | W.D. Pa. | Literary works; Pictorial, graphic, and sculptural works | Comic |
| Ding v. Mask Pot Inc., 347 F.R.D. 417 (E.D.N.Y. 2024). | 09/19/24 | In wage and hour class action, plaintiffs food prep workers sought to use defendant restaurant operator's logo on communications to potential class members. The court denied the request and plaintiffs' fair use arguments, holding, "Courts routinely deny the use of Defendants' logo on FLSA notices as its use runs the risk of a copyright violation and can send a message to recipients that their current or former employer wants or expects them to join the action." | Other | Not fair use | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Design |
| American Society For Testing and Materials v. Upcodes, Inc., 752 F. Supp. 3d 480 (E.D. Pa. 2024). | 09/18/24 | ASTM, a nonprofit publisher of technical standards sued Upcodes, Inc., which operates a for-profit website that publishes building codes and stardards, after Upcodes published ten copyrighted ASTM standards, "all of which had been identically incorporated by reference into state and local legal codes." As one example, the Philadelphia Building Code incorporated by reference the 2018 International Building Code, which in turn expressly incorporated by reference ten ASTM standards related to steel and aluminum used in construction, and posted to Upcode's website. On plaintiff's motion for a preliminary injunction, the court held that Upcodes's actions likely constitute fair use. Weighing the various fair use factors, the court found defendant's publishing of the guidelines was sufficiently transformative because its "distinct objective [was] making the law freely accessible and educating the public on the contents of binding laws," as opposed to ASTM's purpose to "publish industry best practices" and "'positively impact public health and safety' by developing high-quality technical standards." Nor was Upcodes' use commercial in nature, even if it received a tangential benefit of drawing users to its website, because it "derive[d] no direct monetary profit" from posting the standards. On the second factor, the nature of the work was almost wholly factual and this situation is "virtually indistinguishable" from "expressly cop[ying] into law" which falls outside copyright protection. Therefore, second factor weighed in favor of fair use. Third, although UpCodes copied the entirety of ASTM's standards, it only copied was was "reasonably necessary" to accomplish its valid objective. Finally, on the market harm factor, the court found that the market for ASTM's standards might be compromised, but, citing Google, held "there is reason to question whether enforcing ASTM's copyright here would 'interfere with, not further, copyright's basic creativity objectives'" given the "countervailing public benefits of UpCodes' copying" and, in any event, ASTM has other incentives for creating standards. The court found this factor to be neutral. Weighing all these factors "in light of the purposes of copyright," the court court denied the plaintiff's motion for a preliminary injunction because the defendant's actions satisfied the defense of fair use and ASTM's copyright claims were unlikely to succeed on the merits. (Ed. note: This is the fourth case in our database since 2019 involving UpCodes; all have found fair use. Here, UpCodes argued that the Supreme Court's decision in Georgia v. Public.Resource.org decided the case, as "no one can own the law," but the court declined to address this argument in light of its conclusion on fair use.) | Preliminary injunction | Fair use | 3d | E.D. Pa. | Literary works | Legal rules and standards |
| Atari Interactive, Inc. v. State Farm Mut. Auto. Ins. Co., No. 3:24-CV-0704-D, 2024 WL 4343050 (N.D. Tex. Sept. 27, 2024). | 09/17/24 | Atari brought suit against State Farm for its use of a "Crystal Castles" arcade cabinet in a commercial. The court denied State Farm's motion to dismiss. The cabinet appeared in the center of the video for the majority of the commercial, in focus, and the characters were depicted interacting with the cabinet, suggesting the cabinet played a central part of the plot of the commercial. The name "Crystal Castles" was replaced with the name "Witch's Broom," but the original characters in the game itself and artwork wrap of the cabinet remained unchanged and was readily identified as Crystal Castles by viewers, despite the changed marquee. The use of the cabinet was not found to be de minimis. The court ruled that State Farm relied on the cabinet to "invoke the same aesthetic tones intended to be evoked in the artwork itself" and the cabinet was not used in a transformative or new way, With respect to the market impact factor, the court determined that Atari has an "active licensing business" and it is plausible that the widespread unlicensed use of Atari's copyrighted works would impact that business. | Motion to dismiss | Not fair use | 5th | N.D. Tex. | Pictorial, graphic, and sculptural works | Art |
| Catherine Alexander v. Take-Two Interactive Software, Inc., No. 18-CV-966-SMY, 2024 WL 4286349 (S.D. Ill. Sept. 25, 2024). | 09/16/24 | Plaintiff designed several tattoos that appeared on wrestler Randy Orton, which were depicted in defendants' "WWE 2K" series of video games. At trial, the jury found for plaintiff and awarded $3,750.00 in damages. On defendants' motion for judgment as a matter of law based in part on fair use, the court declined to overturn the jury's decision. The court held that the tattoos were "included for their expressive value, rather than to merely display Orton's likeness accurately," especially given that game players could put the tattoos on custom-designed wrestlers. On the fourth factor, the defense's expert "provided unrebutted testimony that a market for licensing tattoos in videogames does not exist and was unlikely to be developed" which favored fair use. Given that the other factors cut against fair use, however, the court "[did] not find that it was unreasonable for the jury to conclude that Defendants were not entitled to their fair use affirmative defense." The motion for judgment as a matter of law was denied as to fair use. (Ed note: In Google v. Oracle, the Supreme Court held that fair use is a legal question judges should apply de novo; but in this case, the jury was asked to make a determination as to defendants' fair use defense, and the court gave substantial deference to the jury's verdict. Given that the trial took place after Google, it is not clear why the jury was given this question. In any event, the court should have reviewed the verdict de novo. The court granted defendants' motion as to damages, vacating the jury's award; it will be interesting to see how that decision affects any determination on attorney's fees. In 2020, the court denied defendants' motion for summary judgment because issues of fact remained to be determined.) | Other | Not fair use | 7th | N.D. Ill. | Pictorial, graphic, and sculptural works | Tattoo |
| Elaad Eliahu v. Mediaite, LLC, No. 23 CIV. 11015 (VM), 2024 WL 4266323 (S.D.N.Y. Sept. 23, 2024). | 09/15/24 | Plaintiff filmed politician Alexandria Ocasio-Cortez commenting on the death of New Yorker Jordan Neely. Defendant allegedly used a single frame of the video in an article about Rep. Ocasio-Cortezʻs comments. On defendantʻs motion to dismiss, the court held that defendantʻs use was not transformative: "Both were created for a journalistic purpose: to document political discourse following Jordan Neely's death, specifically by visually depicting one moment when Ocasio-Cortez contributed to that discourse" and providing additional context was not enough. The second factor favored fair use, as the video in question was a "published, factual work" and "it is not plausible that [plaintiff] had control over the newsworthy contents of the video." The third factor was neutral; although defendant used the "lowest quantity," it used the portion of the "highest quality and importance." The fourth factor weighed against fair use because "readers who see the Screenshot may no longer have a reason to seek out a copy of the Video," and in any event, factfinding would be warranted on this factor. The court denied defendantʻs motion to dismiss. | Motion to dismiss | Not fair use | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Keck v. Mix Creative Learning Center, L.L.C., 116 F.4th 448 (5th Cir. 2024). | 09/14/24 | Plaintiff is a mixed media artist. Defendants are an art studio and the owner. Defendant began selling art kits online that include an artist's bio, a sample of their work, and zoom classes where the owner described the art and their techniques. The district court granted summary judgment for defendant on fair use, holding that defendantʻs work was transformative (lessons made the work educational), used in good faith (all kits taken down as soon as Defendants were notified of the lawsuit), and did not negatively impact the market for the work (art lesson exposure would likely increase the market value of plaintiffʻs work). The Fifth Circuit affirmed. The court held distinguished this case from Warhol, observing that "the art kits had an educational purpose that was significantly different from the original, decorative purpose of Keck's dog-themed artworks." On the fourth factor, the court held that "Mix Creative does not participate in the same markets as Keck" and "Keck offered no evidence that [a licensing] market exists or could reasonably be expected to develop." | Defendant's motion for summary judgment | Fair use | 5th | 5th Cir. | Pictorial, graphic, and sculptural works | Art |
| Grant v. Trump, 749 F. Supp. 3d 423 (S.D.N.Y. 2024). | 09/13/24 | Plaintiffs are copyright holders of musical composition and sound recording of "Electric Avenue" by Edmond Grant. Defendants are presidential candidate Donald J. Trump and his campaign, Donald J. Trump For President, Inc. Plaintiff sued for copyright infringement when the Trump campaign used the song "Electric Avenue" in an animated video created by a third party during the 2020 presidential election campaign, which was posted on Trump's personal Twitter account. On defendantsʻ motion for partial summary judgment, the court held that the first factor weighed against fair use, because the video had a very low degree of transformativeness, if any at all; the video did not edit the song's lyrics, vocals or instrumentals, and the song was not used as a vehicle to deliver its satirical message. The defendants also benefitted financially from using the song without paying a licensing fee. The second factor weighed against fair use, as "Electric Avenue" is a highly creative work. The third factor weighed against fair use, because the song plays for the majority of the animation and the excerpt constituted the heart of the original work. Finally, the fourth factor weighed against fair use, as there was no public benefit arising from defendant's use of the work and widespread, uncompensated use of the song in promotional videos would undermineʻs Grant's ability to be compensated for licensing the song. The court denied defendantsʻ motion for partial summary judgment. (Ed. note: See also Grant v. Trump, No. 20-CV-7103 (JGK), 2021 WL 4435443 (S.D.N.Y. Sept. 28, 2021) (denying defendantsʻ motion to dismiss).) | Defendant's motion for summary judgment | Not fair use | 2d | S.D.N.Y. | Musical works | Musical composition |
| Stefan Jeremiah v. 5 Towns Jewish Times, Inc., No. 22-CV-5942 (NGG) (CLP), 2024 WL 4163664 (E.D.N.Y. Sept. 12, 2024). | 09/12/24 | Plaintiff is a professional photographer. Defendant 5 Towns Jewish Times operates a news website. Plaintiff sued when defendant posted on its webstie an original photograph taken by plaintiff depicting the arrest of Tiffany Harris. Defendant waived its affirmative fair use defense. In response to plaintiffÊ»s amended motion for default judgment, defendant asserted that because it believed it was exercising fair use, it was an "innocent infringer" for statutory damages purposes pursuant to 17 U.S.C. §504(c)(2). The court rejected this argument, reasoning that as a media organization defendant should have been diligent as to copyright status of works it was using. The court also clarified that, though Section 504(c)(2) provides for a reduction in statutory damages where the defendant believes their use is fair use, that provision is only available to a nonprofit educational institution, library, or archives, or a public broadcasting entity. | Other | Other | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Design with Friends, Inc. v. Target Corp., No. 1:21-cv-01376-SB, 2024 WL 4103737 (Sept. 6, 2024). | 09/06/24 | Plaintiff made a website that lets users pick out and arrange furniture in a 3D virtual room and sued Target for doing the same. The court denied cross-motions for summary judgment. Among other allegations, plaintiff said Target directly copied its website by taking screenshots and taping focus groups using the tool. The court noted, "Target can raise a fair-use defense because it used these reproductions for research and inspiration," but held that fair use was a question for the factfinder. | Plaintiff's motion for summary judgment; Defendant's motion for summary judgment | Fair use not determined | 3d | D. Del. | Pictorial, graphic, and sculptural works | Other |
| Hachette Book Group v. Internet Archive, 115 F.4th 163 (2d Cir. 2024). | 09/04/24 | Plaintiffs, large publishing companies, sued Internet Archive (IA), a non-profit organization dedicated to providing universal access to all knowledge. Defendant scanned books and loaned the digital copies protected by copyright as part its "Controlled Digital Lending" program, in which "it allowed only as many concurrent "checkouts" of a digital book as it has physical copies in its possession" or in possession of a partnering library. (This one-to-one restriction was temporarily lifted during the COVID-19 pandemic.) The district court granted plaintiff's motion for summary judgment, holding that this practice was not fair use. The Court of Appeals affirmed. The first factor favored plaintiffs because the use was not transformative. However, the court disagreed with the district court that IA's use was commercial. "It is undisputed that IA is a nonprofit entity and that it distributes its digital books for free," the court reasoned, and soliciting donations and receiving grant funding does not make the use commercial, nor does a link to buy a used physical copy of the book. The second and third factors favored plaintiffs. On the fourth factor, the court held for plaintiffs because IA was supplanting publishers' place in the book licensing market, defining the market as all books"”not just e-books or e-books sold to libraries for lending. Though IA produced expert evidence suggesting little market harm, the court rejected that evidence, instead relying on "logical inferences" to conclude "it was 'self-evident' that if IA's use were to become widespread, it would adversely affect Publishers' markets for the Works in Suit" (quoting Warhol). The court explicitly declined to require plaintiffs to provide any evidence and instead required defendants to "disprove market harm." The court concluded that IA's defense failed as a matter of law. (Ed. note: this was a closely-watched case with many amicus briefs. Many observers had been alarmed that the district court found IA's activity to be a commercial use, but the Second Circuit firmly rejected this notion: the gist of its reasoning was that "IA does not profit directly from its exploitation of the Works in Suit." The court also noted that a commerciality finding here "would render commercial the activities of virtually any nonprofit organization that bolsters its reputation through its own nonprofit activities." The court was correct to consider the "public benefit" of the use in its market harm analysis, as required by Google v. Oracle, but it arguably should have considered the importance of library lending to society, and how e-book licensing affects that role.) | Plaintiff's motion for summary judgment | Not fair use | 2d | 2d Cir. | Literary works | Book |
| MGMTL, L.L.C. v. Strategic Technology Institute, Incorporated, No. 23-30298, 2024 WL 3949073 (5th Cir. Aug. 27, 2024). | 08/27/24 | Plaintiff MGMTL, LLC alleged that defendant Strategic Technology Institute ("STI") breached a contract with MGMTL by copying MGMTL's proprietary security management software in the development of its own and passing off the software as STI's intellectual property. In a brief review of the district court's decision, the Fifth Circuit affirmed the district courtʻs holding that STI is not entitled to judgment as a matter of law on its fair use defense. Three of the four factors weighed against fair use, as "STI's use was commercial and not transformative, the jury found that STI engatged in substantial copying, and the jury found that STI's use of [plaintiff's program] affected the market for [plaintiff's program]." The only factor weighing in favor of fair use was the nature of the copyrighted work, being the least significant factor. | Jury trial | Not fair use | 5th | 5th Cir. | Literary works | Software |
| Santos v. Kimmel, 745 F.Supp.3d 153 (S.D.N.Y. 2024). | 08/19/24 | Former Representative George Santos sued late-night talk show host Jimmy Kimmel, ABC and Disney for coyright infringement when defendants, under fake names, requested videos from Santos through Cameo and subsequently used those videos in a segment called "Will Santos Say It?" on the Jimmy Kimmel Live show. On defendantsÊ» motion to dismiss, the court decided that the use was transformative as "criticism of and commentary on a newsworthy public figure" by commenting on the willingness of Santos to say ridiculous things for money. The segments also target the videos, furthermore showing the transformativeness through commentary. Although the use of the videos was commercial in nature, that fact was dispositive , especially in light of the transformative use. The fourth factor weighed in favor of fair use, as there was no harm identified to the potential or existing market for the videos that Santos created for the defendants, and all of the harm that arose from the use came from the criticism of Santos rather than from a usurpation of the market by the dedendants. Taking all factors into consideration, the court held defendant's use was fair use and the motion to dismiss was granted. | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Andersen v. Stability AI Ltd., 744 F.Supp.3d 956 (N.D. Cal. 2024). | 08/12/24 | Artists brought suit against artificial intelligence creator and developers of text-to-image generators for copyright infringement, induced copyright infringement and various other causes of action. On a motion to dismiss, two defendants asserted their use of the artistsʻ images should be considered fair as a matter of law, the court declined to assess fair use at this stage, holding that fair use and other questions "must be tested on an evidentiary basis." (Ed. note: In a footnote, the court declared that "run-of-the-mill" copyright infringement cases pressed by defendants were "unhelpful in this case where the copyrighted works themselves are alleged to have not only been used to train the AI models but also invoked in their operation. Whether that use is ʻsubstantial enoughʻ either in operation or output of images to qualify for the fair use defense will be tested on summary judgment.") | Motion to dismiss | Fair use not determined | 9th | N.D. Cal. | Pictorial, graphic, and sculptural works | Art |
| Canadian Standards Association v. P.S. Knight Company, Limited, 112 F.4th 298 (5th Cir. 2024). | 08/09/24 | Plaintiff, a Canadian not-for-profit corporation, brought copyright infringement suit against defendants, a Canadian company and an American company ("Knight"), alleging they infringed plaintiff's copyrights in Canadian model building and safety codes, when they sold competing versions of those codes. The majority opinion did not address fair use, concluding that defendants did not infringe as a matter of law. However, dissent argued that defendant's use of the codes was not transformative as they were simply copies of plaintiff's codes and their purpose was entirely commercial. Additionally, Knight's conduct in incorporating a new entity in the United States and transferring assets to the entity in order to be outside the direct jurisdiction of Canadian Federal Court weighed against fair use, as the propriety of the defendant's conduct is relevant to the character of the use. (Ed. note: the Supreme Court has repeatedly indicated "skepticism" as to the usefulness of considerations of bad faith in fair use analysis. See Google v. Oracle and Campbell v. Acuff-Rose.) | Plaintiff's motion for summary judgment; Defendant's motion for summary judgment | Fair use not determined | 5th | 5th Cir. | Literary works | Legal rules and standards |
| Green v. United States Dept. of Justice, 111 F.4th 81 (D.C. Cir. 2024). | 08/02/24 | A computer scientist and an electrical engineer brought a pre-enforcement challenge to the Digital Millennium Copyright Act (DMCA) against the government seeking declaratory and injunctive relief and alleging that certain DMCA provisions violated the First Amendment. After a motion for preliminary injunction on the as-applied challenge was rejected and the rejection affirmed on interlocutory appeal, the plaintiff's as-applied and facial challenges were dismissed by the district court. On appeal, the D.C. Circuit addressed the facial challenge and held: the DMCA's anticircumvention and antitrafficking provisions regulate conduct rather than speech; plaintiffs failed to show a substantially disproportionate impact on speeach and the provisions were not overbroad; and the regulatory exemption process did not operate as a prior restraint on speech. The district court's dismissal was affirmed. (Ed. note: we are including this case in the Fair Use Jurisprudence Project database because plaintiff and numerous amici argued that the exemption process, ostensibly a "fail-safe" mechanism to preserve fair use and other rights, was unconstitutional. The UCI Intellectual Property, Arts, and Technology Clinic authored an amicus brief on behalf of filmmakers in this appeal and the earlier interlocutory appeal. Read more here and here.) | Motion to dismiss | Other | D.C. | D.C. Cir. | Literary works | Software |
| Strom v. Petershagen, No. 2:24-CV-00583-BAT, 2024 WL 3638056 (W.D. Wash. Aug. 2, 2024). | 08/02/24 | Plaintiff took a photo at a ceremonial groundbreaking in which defendant participated. Defendant, a political candidate at the time, used a portion of the photo as a part of a political mailer. Plaintiff sued for copyright infringement; defendant asserted fair use. The court held that the use was a fair use, because (1) defendant's use was transformative, changing both the appearance and meaning of the photograph by using around 10% of it in conjunction with other photographs to create something new for political commentary. The mailer was used as a political ad, rendering it noncommercial. (2) As the photograph is a factual deptiction of a newsworthy event, it is more likely to be the subject of a fair use and plaintiff had published the photograph on Facebook already. (3) Because only about 10% of the original photo was used and that contained the defendants face, defendant did not use the heart of the work, but only enough that was necessary for the intended use. (4) Plaintiff never alleged that defendant's use of the photograph had any impact on a market for the photograph, and somone wanting the photograph could already download it for free from plaintiff's Facebook page. All of these factors weigh substantially in favor of fair use. Defendant's motion to dismiss granted. | Motion to dismiss | Fair use | 9th | W.D. Wash. | Pictorial, graphic, and sculptural works | Photograph |
| McGillvary v. Netflix, Inc., No. 2:23-CV-01195-JLS-SK, 2024 WL 3588043 (C.D. Cal. July 30, 2024). | 07/30/24 | Pro se plaintiff Caleb McGillvary sued Netflix and RawTV for using local news interviews McGillvary gave and YouTube videos he posted of himself dancing, singing, and playing guitar in a documentary about McGillvary called The Hatchet Wielding Hitchhiker. The court rejected McGillvary's claim of copyright ownership in the local news interviews. Assuming McGillvary had plausibly pleaded ownership in the other works, the court held the fair use doctrine protected defendants' use in the documentary. The first factor weighed in favor of fair use because the documentary weaves McGillvary's allegedly copyrighted works together with additional information to produce a documentary about McGillvary himself, including his background, rise to fame, and murder conviction, while questioning whether the information given in his famous interviews was true. The second factor favored fair use because although some of the underlying works were creative, they were also widely disseminated on the internet. The third factor favored fair use because the the documentary only used 20-80 seconds of a number of videos several minutes long. The fourth factor favored fair use, as the documentary was not a substitute for McGillvary's videos. The court granted defendants' motion to dismiss. (Ed. note: The court considered that one of the works used was "widely disseminated" as part of the second factor. Publication status is generally relevant to the second factor analysis when a work is unpublished. The fact of widespread dissemination is also relevant to the fourth factor analysis; if something has already been widely distributed for free the market may not be effected negatively.) | Motion to dismiss | Fair use | 9th | C.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Markos v. BBG, Inc., No. 3:23-CV-02125-X, 2024 WL 3504546 (N.D. Tex. July 22, 2024). | 07/22/24 | Steven Markos, professional photographer, sued real estate company BBG for taking a photo Markos took of Tuskegee Institute from his website, removing his copyright mark, and posting it on BBG's Facebook page. For the first factor, the court applied Warhol. The court observed that the purpose of Markos's use of the photo was to "creat[e] [a] photographic catalog[ ] of ... historic sites," while BBG claimed its purpose was to "depict[ ] the first black architect Robert R. Taylor to show the skill of this architect during Black History Month." The court held that a decision on this factor would be premature based on the pleadings alone; discovery was needed. The court decided there was not enough information to make a determination even on the first factor, so it forwent further fair use. Defendant's motion to dismiss was denied. | Motion to dismiss | Fair use not determined | 5th | N.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Lanzilote v. Allwrite Communications Inc., No. 1:22-CV-00068-SEG, 2024 WL 4005219 (N.D. Ga. July 18, 2024). | 07/18/24 | Photographer took a photograph of Congressional Representative Rashida Tlaib and sued publisher of | Plaintiff's motion for summary judgment | Fair use not determined | 11th | N.D. Ga. | Pictorial, graphic, and sculptural works | Photograph |
| Shihab v. Source Digital, Inc., No. 23CV7266 (DLC), 2024 WL 3461351 (S.D.N.Y. July 18, 2024). | 07/18/24 | Professional photographer sued digital platform of hip-hop magazine The Source when a photograph he had taken in 1995 of two members of the Wu Tang Clan was posted on the magazine's Instagram account by an independent contractor. Magazine asserted a fair use defense, among other defenses. The court held that this was not fair use. The first factor weighed against fair use, as the use did not comment on the photograph itself, but commented on the historical and cultural significance of the image to the hip-hop community as the magazine argued. The court added that "[s]imply adding a list of hashtags to the post is not commentary." Although the defendant magazine argued that it acted in good faith by tagging the photographer and promptly removing the post when it received a cease and desist letter, this would not assist in connection with the first factor. The fourth factor weighed strongly against fair use as well, because the magazine made use of the heart of the photograph without purchasing a license, entirely usurping and acting as a substitute for the original. The court therefore granted plaintiff's motion for summary judgment. (Ed. note: A Doniger/Burroughs case. The facts here are somewhat unique, because simply reposting the photo from the photographer's own Instagram account would have been permitted by Instagram's own terms of use. If the photographer had made the photo freely available within the Instagram ecosystem prior to defendants' use, that fact should weigh heavily against plaintiff in the fourth factor (market effect) and damages analysis. More broadly, this and similar cases should serve as a warning for media organizations when they consider even sharing Instagram posts containing photos that may come from unauthorized sources.) | Plaintiff's motion for summary judgment | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Bowery v. Sites, No. 2:21-cv-00567-DBB-JCB, 2024 WL 3416038 (D. Utah July 15, 2024). | 07/15/24 | Trunk Archive sued www.comicbookmovie.com ("CBM") and principals for using photos of Star Wars productions by Annie Liebovitz in numerous CBM articles. The court distinguished beween articles where the photos were used "merely for illiustrative purposes," and articles that commented directly on the photos. The court granted summary judgment for Trunk Archive in the first category of uses, finding that the first factor favored plaintiffs; even though there was minimal if any commercial use, the uses were not transformative. The court found that the second and third factors cut against fair use as well, and the fourth factor was neutral. With respect to situations in which the articles commented directly on the photos, the court found factual questions existed with respect to market effects and commercial use, and denied summary judgment. (Ed. note. A Higbee case. The court rejected the Ninth Circuit's "server test" set forth in Perfect 10 v. Amazon, 508 F.3d 1146, 1159"“60 (9th Cir. 2007). The court's analysis contains a useful overview of the state of the "server test" doctrine at this time.) | Plaintiff's motion for summary judgment | Not fair use; Fair use not determined | 10th | D. Utah | Pictorial, graphic, and sculptural works | Photograph |
| Stebbins v. CMDR ImperialSalt, No. 8:24-CV-01486-JVS-KESX, 2024 WL 3914665 (C.D. Cal. July 12, 2024). | 07/12/24 | Youtuber David A. Stebbins sued an individual for copyright infringement when he reposted Stebbin's paywalled video on another website with "two sentences worth of criticism and commentary." Stebbins' motion to strike a fair use defense prior to discovery was denied by the court as there is dispute betweeen the parties of facts relevant to the analysis. (Ed. note: Both parties were represented on a pro se basis, and Stebbins has been declared a vexatious litigant by more than one federal court. See Stebbins v. Moon, No. 2:24-CV-140, 2025 WL 312524 (S.D.W. Va. Jan. 27, 2025).) | Other | Fair use not determined | 9th | C.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Greenberg v. PATHS Program Holding, LLC (AZ), No. 3:19-CV-30032-MGM, 2024 WL 4012010 (D. Mass. July 2, 2024). | 07/02/24 | Developmental psychologist and joint author/owner of "PATHS Curriculum," which concerned the social and emotional development of children, sued licensees (by transfer) of various PATHS curriculum works claiming they exceeded the scope of the licenses by including the works in their training video and by altering three curricula kits provided in the curriculum. With respect to the video, the a Magistrate Judge recommended the court determine that various aspects of the fair use analysis required fact-finding and could not be decided on summary judgment, including whether the work was derivative or transformative; whether the material was a highly creative work or a scholarly, factual work; whether the heart of the copyrighted work was used and the relation of the copyrighted material to the uncopyrighted material; and the effect on the market. Citing First Circuit and Supreme Court precedence, the Magistrate Judge rejected plaintiff's argument that fair use should be precluded in light of alleged bad faith on the part of the licensees. Bundling the video in order to reduce royalties paid to the authors, the Magistrate Judge held, is not the type of bad faith that should be considered, and the relevant bad faith argument would be obtaining the copyrighed material in inappropriate ways. Regarding the alteration of curricula kits, the court held that various questions should be resolved by a factfinder. The Magistrate Judge recommended denying the plaintiff's motion for summary judgment. | Cross-motion for summary judgment | Fair use not determined | 1st | D. Mass. | Literary works | Educational materials |
| Flyland Designs, Inc. v. Jake's Fireworks, Inc., No. 24-02230-EFM-BGS, 2024 WL 3252335 (D. Kan. July 1, 2024). | 07/01/24 | Graphic art studio brought suit against fireworks seller for importing, distributing, selling, and displaying graphic art studio's "Firefighter Leprechaun" illustration. Defendant proffered fair use defense; plaintiff moved to strike. The court struck the defense, as the defendant merely mentioned the second and fourth factors used in the fair use analysis and provided no factual support as to why they weighed in favor of fair use. | Other | Fair use not determined | 10th | D. Kan. | Pictorial, graphic, and sculptural works | Art |
| Sadowski v. Red Hills Journalism Foundation,, No. 4:23cv172-MW/MJF, 2024 WL 3551032 (N.D. Fla. June 10, 2024). | 06/10/24 | A Florida nonprofits news provider published a story about a New York Post article; the story reproduced a photo taken by plaintiff, a professional photographer, and licensed by the Post, of migrants in New York. On defendant's motion for summary judgment, the court found that defendant had waived its fair use defense, and concluded that, in any event, "at the very least, a reasonable jury could find in Plaintiff's favor on this defense." The motion for summary judgment was denied. | Defendant's motion for summary judgment | Fair use not determined | 11th | N.D. Fla | Pictorial, graphic, and sculptural works | Photograph |
| Griner v. King, 104 F.4th 1 (8th Cir. 2024). | 06/07/24 | Plaintiff Lacey Griner owned the registered copyright in a photograph of plaintiff Sam Griner that formed the basis of a popular internet meme titled "Success Kid." Defendant is a campaign committee for defendant Steve King (then a Congressional representative) that created a "Meme Action Post" incorporating part of the photograph on a different background and displayed the post on a server and on defendant's Facebook Page. The post was essentially a fundraising appeal, calling for supporters to "Fund our memes." The district court denied defendants' motion for summary judgment on their fair use defense, finding that (a) the publication's purpose was commercial rather than nonprofit since it used the photograph to raise funds for defendant King; (b) no facts asserting that the use was transformative; (c) the work was not "functional in nature" as a "tool of sorts" because the work was not a meme, despite defendant's claim that the photograph had become a meme and was thus a tool "conveying information and emotion;" (d) defendant's meme's use of plaintiff and his gesture constitued using the "heart" of the expression; (e) defendant's use might have caused little market harm, but defendant's failed to show any facts marginalizing the extent of harm by unrestricted and widespread conduct of the sort that defendants engaged in. The Eighth Circuit affirmed this holding. The court reasoned, "it is undisputed that the Committee's use was purely commercial"”the meme solicited campaign donations with its call to 'FUND OUR MEMES!!!' The Committee sought to exploit the copyrighted material, for financial gain, without paying the customary price." This weighed heavily against fair use, the court held. The court also determined that the fourth factor (effect on the market) was neutral given widespread usage of the meme, even though plaintiffs had licensed the work previously "to many well-known brands." (Ed. note: both the district court and the appellate panel left ample room for memes to be fair use; the district court opinion, in particular, contained a nuanced discussion of fair use in the context of meme usage.) | Defendant's motion for summary judgment | Not fair use | 8th | 8th Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Medical Imaging & Technology Alliance v. Library of Congress, 103 F.4th 830 (D.C. Cir. 2024). | 06/07/24 | Medical device trade association challenged a copyright "exemption" promulgated by the Librarian of Congress upon recommendation by the Register of Copyrights after a fact-intensive rulemaking process managed by the Register. The process is authorized by the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1201(a). In this case, the Librarian issued an exemption permitting "independent service operators to bypass technological protective measures [like encyption] on medical devices for the purpose of diagnosis, modification, or repair." The district court held that the Librarian was protected from suit by sovereign immunity because the Librarian is part of Congress. The Court of Appeals disagreed, holding that the Copyright Act provides "all actions" of the Register are governed by the Administrative Procedure Act ("APA"), and that includes rules that must be approved by the Librarian. "The APA therefore provides the necessary waiver of sovereign immunity for this suit," the court concluded. A dissent argued that the D.C. Circuit had already held that the Librarian of Congress was not an "agency" for APA purposes (Ed. note: we are including this case in the Fair Use Jurisprudence Project database because it concerns the triennial exemption process outlined in 17 U.S.C. § 1201(a), which is intended to ensure that the anticircumvention provisions in Section 1201 are compatible with fair use and other uses.) | Motion to dismiss | Other | D.C. | D.C. Cir. | Literary works | Software |
| Splunk Inc. v. Cribl, Inc., No. C 22-07611 WHA, 2024 WL 2701627 (N.D. Cal. May 24, 2024). | 05/24/24 | Plaintiff Splunk makes software that enables customers to collect data from different sources and put it into a dashboard in order to search and manage the data. Defendant Cribl's software "sits between data sources and destinations" and allows customers to weed out junk data sent to Splunk. Cribl's software did not copy any of Splunk's code, but Cribl did copy and analyze Splunk's software in order to reverse engineer it to make Cribl's software interoperable with Splunk's and to determine an uncopyrightable protocol (a "set of rules for formatting and processing data"). After a jury trial in which the jury was instructed that copying the software for reverse engineering the protocal and to ensure interoperability was fair use, the court issued a "Memorandum Opinion on Fair Use." In it, the court relied heavily on the Ninth Circuit's decision in Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 (9th Cir. 1992), to conclude that Cribl's reverse engineering activity was fair use, as was its copying and use of the Splunk software for testing and troubleshooting. However, the court held that Cribl's use of Splunk's software for marketing purposes (such as use in a "sandbox" to demonstrate to customers) was not fair use. In a companion order on Splunk's motion for a permanent injunction, the court permitted Cribl to move forward with the fair uses outlined above, but enjoined Cribl from using Splunk's software for marketing uses. (Ed. note: this case was tried before Judge William Alsup, the trial judge in the lengthy, highly technical, and legendarily hard-fought Google v. Oracle case that ultimately went to the Federal Circuit twice and then to the Supreme Court.) | Post-trial order | Mixed result (some fair use) | 9th | N.D. Cal. | Literary works | Software |
| X Corp. v. Bright Data Ltd., 733 F.Supp.3d 832 (N.D. Cal. 2024). | 05/09/24 | Social media platform X, formerly known as Twitter, sued a data scraping-company under various state and federal causes of action arising out of or the data scraping of its website by defendant. The court held that the state law cause of action was preempted by the Copyright Act, because prohibiting data scraping would not only prevent unlawful uses of the data, but it would prevent all fair uses as well. [Ed. note: The court later denied the plaintiff's motion to file an amended complaint. X Corp. v. Bright Data Ltd., No. C 23-03698 WHA, 2024 WL 4894290 (N.D. Cal. Nov. 26, 2024).] | Motion to dismiss | Fair use not determined | 9th | N.D. Cal. | Literary works | Online literary work |
| Lynk Media, LLC v. Peacock TV LLC, No. 23-CV-5845 (JGK), 2024 WL 2057235 (S.D.N.Y. May 8, 2024). | 05/08/24 | Freedomnews.tv owned the rights to videos of the famous Rudy Giuliani press conference at Four Seasons Total Landscaping and a scuffle between supporters of Biden and Trump. Defendants Peacock TV LLC and NBCUniversal Media, LLC used segments of the videos in a documentary about the Giuliani press conference and its effects on the Four Seasons Total Landscaping Company. The court denied defendants' motion to dismiss. On fair use, the court held: (1) The use was likely not transformative, as it merely used the videos as illustrative aids, rather than providing commentary on them, so this factor cut against fair use; (2) while the copyrighted work is creative, it was unclear whether the works were created to record facts or for a more expressive purpose, so this factor was neutral ; (3) although defendants only used one minute of the 11 minutes of video in their documentary, defendants used the "heart" of the videos in their documentary, so this factor cut against fair use; and (4) the defendant usurped the licensing market for the videos, so this factor cut against fair use. The court concluded that defendants had not "clearly establish[ed]" that the complaint "entitles them to a fair use defense" and indicated that "defendants may reassert their fair use defense at the summary judgment stage when there is a more developed factual record." (Ed. note: The filming of a press conference is usually highly factual and minimal creative expression is involved. If this was the case here, that video should receive minimal copyright protection, and though the second factor ("nature of the copyrighted work") is rarely dispositive, in this case it should carry greater weight. In addition, the court should not have drawn a binary distinction between directly commenting on a work, and using the work for "merely illustrative" purposes. Countless courts have found fair use where documentary filmmakers closely analyze events depicted in the work, or where the work itself is the subject of the documentary (or news report, or biography) even though the artistic and creative decisions in the work itself are not the focus of the use.) | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Wareka v. JW Sanders PLLC, No. 1:23-CV-246-RP, 2024 WL 1978076 (W.D. Tex. May 3, 2024). | 05/03/24 | Plaintiff is a professional fashion photographer. Defendants are "a luxury medical practice specializing in anti-aging and wellness treatments" and its principal owner. Defendants posted two fashion photographs to the company Instragram and Facebook pages in 2020, which they had copied from Pinterest. In 2022, plaintiff's agents discovered the photos and brought suit in 2023. The court rejected defendants' fair use defense given that the photos were used "to market and promote Rejuvenate Austin's products and services...in the same manner that Plaintiff typically licenses her works: to display in conjunction with marketing and promoting beauty products and services." (Ed. note: A Higbee case.) | Defendant's motion for summary judgment | Not fair use | 5th | W.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| August Image, LLC v. Girard Entertainment & Media LLC, No. 23-CV-1492 (VEC), 2024 WL 1375480 (S.D.N.Y. Apr. 1, 2024). | 04/01/24 | Plaintiff is photographer Mark Seliger and his agency August Image, LLC. Defendants operate news sites which published an article depicting David Schwimmer's Instagram post containing a photograph of the cast of Friends. The article stated that Schwimmer confirmed in an Instagram post that Friends would be returning for a special episode. This photograph was taken by plaintiff Seliger. Plaintiff sued for copyright infringement. Defendant invoked a fair use defense. The court determined that defendants' use was fair. (1) The first factor favored the defendant as the use was considered transformative as the article's focus was on the fact that Schwimmer's Instgram post and the inclusion of the copyrighted work at issue was incidental (citing Walsh v. Townsquare Media, Inc., 464 F.Supp.3d 570 (S.D.N.Y. 2020)), and the photograph itself could not have fulfilled the same purpose as the Instagram post. Furthermore, although the photograph was in an issue of the online magazine, the photogrph in a single article is only a small part of the magazine. The indirect financial gain, the court held, was outweighed by the public benefit derived from the story's report on the broader public interest. (2) The second factor weighed weakly against finding fair use, as the photograph was creative in nature, although published. (3) The third factor was neutral, due to the article displaying the photograph in its entirety, because it must have done so in reproducing Schwimmer's Instagram post. (4) Finally, the fourth factor was neutral, because the photograph did not appear on its own, but as part of an Instagram post, and thus, could not impair other markets for commercial use of the photograph. The court found fair use. (Ed. note: This is a Doniger/Burroughs case. The court had ordered these attorneys, who represented the plaintiff, to show cause for why they should not be sanctioned for failure to disclose prior royalty information pursuant to the court's order. The court called counsel's compliance efforts "lackadaisical, at best." Though the court declined to santion counsel, it warned the attorneys: "counsel are admonished that the Court will not be so understanding in the future.") | Motion for judgment on the pleadings | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Evolutionary Level Above Human Foundation, Inc. v. Havel, No. 3:22-CV-395-MGG, 2024 WL 835788 (N.D. Ind. Feb. 27, 2024). | 02/27/24 | Plaintiff acquired the intellectual property of a defunct religious group Heaven's Gate ("the Group") during probate after 39 Group members committed suicide in 1997. Pro se defendants are three individuals that allegedly infringed on copyrights of plaintiff when they shared audio recordings of the Group online, sold 9 shirts containing allegedly infringing material, and livestreamed the audio recordings. Plaintiffs sought to enjoin defendants from further use of the copyrighted material while the case proceeded, and defendants sought to enjoin plaintiff for filing for any more copyright registrations until the case was decided. In assessing the likelihood of plaintiff's case to succeed on the merits, the court analyzed the fair use defense of one of the defendants. The court could not conclude that the defense was likely to succeed in this argument. Although defendants argued that they had no monetary gain from their use of the works and their "usage was strictly educational, scholarly, and for research purposes," the court determined that that argument was conclusory and unsupported by any facts defendant had introduced. Defendant also conceded that he had distributed the works in their entirety. Thus the claim was not considered by the court as likely to succeed. The court denied all motions. (Ed. note: Defendants were represented pro se and thus may not have made complete arguments for their case or arguments that complied with court rules. In fact, it appears one defendant inadvertantly waived some potential fair use arguments in his filings.) | Preliminary injunction | Likely not fair use | 7th | N.D. Ind. | Motion pictures and other audiovisual works | Motion picture |
| In Lux Research, Inc. v. Hull McGuire, PC, No. 23-523 (JEB), 2024 WL 774858 (D.D.C. Feb. 26, 2024). | 02/26/24 | Plaintiff In Lux Research was hired to conduct a jury polling analysis by defense lawyers and law firms representing Proud Boys in a criminal trial regarding their involvement in the January 6, 2021 insurrection at the U.S. Capitol. The defense lawyers, defendants, hired In Lux research to conduct the poll in exchange for a $30,000 fee, but failed to pay. Defendants allegedly used the report in several other cases without authorization from plaintiff. Plaintiff sued for copyright infringement, and Defendant invoked a fair use defense as well as asserting protection of 17 U.S.C . § 109(a), the first sale doctrine. Defendants moved to dismiss for failure to state a claim. The court ruled that because defendants failed to provide a reason fair use should be decided before discovery, nor did they provide any evidence why a defense based on fair use or the first sale doctrine would succeed, the motion to dismiss was denied. | Motion to dismiss | Fair use not determined | D.C. | D.D.C. | Literary works | Miscellaneous literary work |
| Thiccc Boy Prods. v. Swindelle, No. 22-cv-00090-MSM-PAS, 2024 WL 733425 (D. R.I. Feb. 22, 2024). | 02/22/24 | Plaintiff, Thiccc Boy Productions, is a production company that hosts a podcast by Brendan Schaub. Defendant, Kyle Swindelles, is a content creator that publishes videos on Youtube. Swindelles published at least four "reaction videos" that included excerpts from Thiccc Boy's podcast. These videos were referred to as "reaction videos." Swindelles put forth a fair use defense. On cross-motions for summary judgment, the court held Swindelles did make fair use of the podcast clips, because (1) Swindelles commented on the quality of the discussion in the podcasts, (2) the podcast videos used were closer to the factual end of the copyright spectrum than the creative, (3) although Swindelles duplicated the full copyrighted videos, he had to in order for his commentary to be useful, and (4) because Swindelles' videos were criticism or commentary, they were unlikely to to affect the original or derivative markets for the podcast. All four factors weighed in favor of the defendant, indicating that he made fair use of the podcasts in his reaction videos. | Defendant's motion for summary judgment; Plaintiff's motion for summary judgment | Fair use | 1st | D.R.I. | Motion pictures and other audiovisual works | Motion picture |
| Trombetta v. Novocin , No. 18-CV-0993-LTS-SLC, 2024 WL 689144 (S.D.N.Y. Feb. 20, 2024). | 02/20/24 | Plaintiff, artist Annamarie Trombetta, sued Defendants, small business owners Norb and Marie Novovicin, for copyright infringement after Defendants posted a painting on eBay and misattributed Plaintiff as the creator of the work and included in the post Plaintiff's biography from her professional website. On cross-motions for summary judgment, the court held that Defendants' use of the biography was not fair use. First, the purpose of the copyright infringement was commercial in nature, as Defendants utilized the biography to facilitate the for-profit sale of the painting it listed; the court held this was not a transformative use. Second, the court found that Plaintiff's biography had expressive value similar to a journal entry or memoir because of her reflections on traveling, the world, and art generally, being more creative than factual on a sliding scale. Third, a significant amount of the biography was excerpted, again leading against a finding of fair use. Fourth, the auction sellers' mistaken attribution demonstrates Plaintiff's valid interest in protecting the dissemination of her biography to entice customers to visit her website and to ensure she conveyed accurate information about her career and her artwork, speaking to the effect of the use on the potential market of the work. (Ed. note: The court's analysis on the fourth factor might have been more appopriate for trademark or right of publicity misappopriation claims than for copyright, because the court could not provide a connection to the effect of the mistaken attribution on the "potential market for or value of the copyrighted work" itself, 17 U.S.C. secn 107, which was the biography.) | Plaintiff's motion for summary judgment; Defendant's motion for summary judgment | Not fair use | 2d | S.D.N.Y. | Literary works | Book |
| Frazetta v. Vanguard Productions LLC, 716 F.Supp.3d 1265 (M.D. Fla. Apr. 16, 2024). | 02/09/24 | Plaintiffs Frazetta Properties LLC and family members of the late fantasy author Frank Frazetta sued Vanguard Productions LLC and its sole member, which primarily publish artist biographies and similar reference books. Defendants' book Frazetta Book Cover Art includes cover art from several of Frazetta's fantasy books. The Court described the book as a coffee table book. The images fill the majority of the pages and are only accompanied by publishing data for the book in which the artwork appeared. Plaintiffs moved for summary judgement on Defendants' fair use defense. On the purpose and character of the use, the Court found that this factor weighs against fair use. The Court rejected the Defendants' argument that the biographical information and purposes support a finding of fair use, as the Court found little educational value in merely providing publishing data with the cover art. The Court likewise rejected Defendants' argument that using one of one of the copyrighted images in a cover matter collage for Frazetta Book Cover Art was transformative, as the use of the art was for to advertise the contents of the book. As for the nature of the copyrighted work, the Court reasoned that the fantasy-themed cover art at issue is the type of highly original and inventive work of fantasy that is most protected by copyright law and thus cut against fair use. Third, as for the amount and substantiality of the portion used, the Court found that this factor cut neither way. The Court reasoned that coffee table books like the one made by the Defendant necessarily require showing all or most of the work, requiring a neutral result for this factor. Fourth, as for the market effects, the Court found that this factor weighed against fair use. The Court noted that the Plaintiffs sell a similar coffee table book and the market for that book is harmed by the availability of the Defendants' book. The Court further reasoned that if every person on the market engaged in similar conduct as the Defendants, then the market would be overrun by substitutes, impairing incentives to create. The Court granted summary judgment in favor of the Plaintiffs as to the issue of fair use. | Cross-motion for summary judgment | Not fair use | 11th | M.D. Fla. | Pictorial, graphic, and sculptural works | Art |
| Philpot v. Inpendent Journal Review, 92 F.4th 252 (4th Cir. 2024). | 02/06/24 | Plaintiff is photographer and serial copyright plaintiff Larry Philpot. Philpot sued a news website, Independent Journal Review ("IJR") after IJR used his photograph of musician Ted Nugent in an online article. On IJR's motion for summary judgment, the district court found fair use. The Fourth Circuit reversed, holding the material was not fair use because the use was not transformative as it did not add to new purpose or meaning to the photograph using it as a depiction or identification of Nugent; the use was commercial as IJR stood to profit from its use, even if not directly; photographs generally merit strong copyright protection and plaintiff had made several creative choices in capturing the photograph; the defendant copied a significant portion of the photograph; and if the defendant's use would be uninterrupted and widespread, it would adversely affect the potential market of the photograph, as Plaintiff was licensing the photograph commercially already. [Ed note: The court gave short shrift to the fact that Philpot released this photograph for anyone to use without payment for noncommercial uses under a Creative Commons license, and that the defendant linked back to the Wikimedia Commons page where the photo had been posted. The difference between a cost-free, openly licensed use"”what most CC licensors intend and why the licenses were created"”and full copyright liability was mere failure to include proper credit on defendant's site or the photo itself. However, it is important to note the difference between noncommercial uses permitted in CC licenses and what the Court found to be a commercial use for fair use purposes. The disconnect between CC's narrow conception of commercial use"”which is more akin to commercial speech in the First Amendment context"”and the more expansive definition the court adopted here warrants further study. In addition, as Prof. Jane Ginsburg has argued, CC licenses' requirements for attribution and "share-alike" downstream use are tied to economic value. Philpot has repeatedly used the predatory tactic of suing based on CC license violations. The Fourth Circuit should have considered the inequities this tactic creates, and the intent behind CC licenses such as these, in its fair use analysis including in its market harm analysis (as the district court did). It is not clear from this opinion whether defendant argued that it is an innocent infringer, but that question may worth exploring in similar future cases.] | Defendant's motion for summary judgment | Not fair use | 4th | 4th Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Wilder v. Hoiland, No. 22-CV-1254 (PKC), 2024 WL 382141 (S.D.N.Y. Feb. 1, 2024). | 02/01/24 | Plaintiff Wilder is a faculty member at Lehman College of the City University of New York (CUNY) bringing a copyright lawsuit against Defendant Hoiland, a faculty member at CUNY's Hostos Community College, alleging Defendant infringed on Wilder's copyright in the text of a research project authored by the plaintiff, referred to as "Unit 7H," by including it in a powerpoint presentation Hoiland gave at the Community College Conference on Learning Assessment (the CCCLA). Plaintiff moves for summary judgment on copyright infringement, while Defendant cross-moves for summary judgment on the grounds of fair use amongst other defenses. The court held that Hoiland's use of the material was fair, as the purpose and character of the use was transformative (Wilder's intent when making the material was to "teach faculty at CUNY about the best practices for infusing quantitative reasoning into their couses, and assessment of instruction," while Hoilen's was to "disseminate assessment results of [the]... faculty development program" and "discuss the challenges and succcessses related to the assessment in the community college context"), the work is more of a "factual work" than a "fictional work," and because Hoiland made efforts to attribute Wilder as a coauthor to her presentation on the CCCLA website, the small number of attendees at the presentation, and a lack of evidence that the powerpoint was widely disseminated, the market and potential market for Unit 7H did not render Hoiland's presentation a "significantly competing substitute." Factors 1, 2, and 4 weighed in the favor of Hoiland accordingly. The court did note that Hoiland did use a significant portion of Unit 7H in the presentation despite not using the heart of the work, the third factor weighs slightly in Wilder's favor. Overall, Hoiland' use of the Unit 7H Text was fair as a matter of law. Wilder's moved for reconsideration, but it was denied. | Plaintiff's motion for summary judgment; Cross-motion for summary judgment | Fair use | 2d | S.D.N.Y. | Literary works | Research materials |
| Simpson Strong-Tie Company Inc. v. MiTek Inc., No. 20-cv-06957-VKD, 2023 U.S. Dist. LEXIS 223876 (N.D. Cal. Dec. 15, 2023). | 12/15/23 | Plaintiff, Simpson Strong-Tie Company Inc., sued defendant, MiTek Inc., for copyright infringement among other causes of action when Mitek copied portions of the plaintiff's API in its 2017-2018 and 2019-2020 catalogs. The court decided that the copying was both de minimis and fair use. Regarding the fair use analysis, (1) defendant's use of facilitating the sale of its own connector parts was not transformative and cut against fair use. (2) The copyrighted works, however, served both functional and promotional purposes and were not highly creative. This factor cut in favor of fair use. (3) Copying was de minimis, so the third factor cut in favor of fair use. (4) Defendant's copying had no effect on the market for plaintiff's catalog, as there was no market for the catalog, but for the connectors advertised in the catalog. The fourth factor highly favored fair use. Upon weighing the factors, the court decided MiTek's copying constituted fair use. | Bench trial | Fair use | 9th | N.D. Cal. | Literary works | Software |
| Teradyne, Inc. v. Astronics Test Systems, Inc., No. CV 20-2713-GW-SHKX, 2023 WL 9284863 (C.D. Cal. Dec. 6, 2023). | 12/06/23 | Plaintiff is a manufacturer and supplier, and Astronics a supplier, of automated test equipment ("ATE") including digital test instruments used to ensure that machines and other items, particularly including military systems such as aircraft and missile systems, are functioning correctly. Astronics copied software code from Teradyne including "function calls, constant values, parameters, and error codes," which it argued was done so in order that the U.S. Military, which had written test program sets ("TPSs") to execute on ATEs "across major national defense programs," could continue to use and rely upon those TPSs on newer, better, or legacy ATEs, without having to face risks and expense that would be associated with rewriting those TPSs. In a detailed, thorough, and highly technical opinion, the court held that the first factor slightly favored the defendants; unlike the API language in Google v. Oracle, here the copying was done in order to allow programmers to use TPSs orginally used on Teradyne equipment on competing equipment. The second factor favored defendants because the programming language was highly functional and practical. The third factor favored defendants because a small portion was taken, and only what was necessary to ensure compatibility with the TPSs. The court held that fourth factor favored defendants because Astronic's use of the Teradyne code created a new market for equipment, strongly supporting defendant in the "public benefit" prong of the market test outlined in Google v. Oracle. The court indicated it would be granting summary judgment for defendants, and later did. In January 2025, the Ninth Circuit affirmed, holding that Google v. Oracle controlled, and “[a] contrary holding would promote the type of monopolistic lock-in that fair use law protects against….” Teradyne, Inc. v. Astronics Test Sys., Inc., No. 24-239, 2025 WL 341828 (9th Cir. Jan. 30, 2025) (not reported/not citable). (Ed. note: The district court's nuanced, thoughtful analysis should be required reading for anyone studying or litigating software code or API cases. Following Google v. Oracle, the court correctly considered the "public benefit" at stake in this case, including the serious "risk and added expense that would be associated with having to entirely rewrite/ recompile TPSs if it elects to use equipment from [anyone] other than Teradyne." And the court correctly highlighted the anticompetitive effects of Teradyne's position, recognizing the benefits that would come from "increased choice and price-competition.") | Defendant's motion for summary judgment | Fair use | 9th | C.D. Cal. | Literary works | Software |
| Kelley v. Morning Bee, Inc., No. 1:21-CV-8420-GHW, 2023 WL 6276690 (S.D.N.Y. Sept. 26, 2023). | 09/26/23 | Plaintiff is a professional photographer with a solo exhibit featured in New Zealand's Auckland Airport. Defendant is a producer of a documentary film about the life and career of musician Billie Eilish. In a scene in the film depicting Eilish's arrival at Auckland Airport, the plaintiff's photography exhibit is briefly visible in the background. Weighing the factors of fair use, the court first held that the purpose and character of the use strongly favors fair use because the momentary and incidental appearance the photographs in the background of a film that's purpose was to document Eilish's life was a highly transformative use. Second, the court held that the nature of the copyrighted work does not favor either party because, although the photographs were artistic in nature, they were also already widely published. Third, the amount and substantiality of the photographs used weighed strongly in favor of fair use because each photograph appeared a mere seven to 14 seconds in a 140-minute-long film. Finally, the effect on the market weighs in favor of fair use because the fleeting appearance of the photographs in the background of a documentary cannot reasonably be expected to harm the market for licensing the photographs. Because the appearance of the photographs so strongly in favor of fair use, the court granted the defendant's motion to dismiss. (Ed note: The Documentary Filmmakers' Statement of Best Practices in Fair Use. includes cases such as this, which the Statement calls "Incidental Use." Many courts have upheld fair use defenses in situations such as this.) | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Hudson Furniture, Inc. v. Mizrahi, No. 120CIV04891PAC, 2023 WL 6214908 (S.D.N.Y. Sept. 25, 2023). | 09/25/23 | Plaintiffs are a manufacturer, designer, and retailer of lighting and furniture and its CEO. Defendant, Alan Mizrahi, sells furniture and lighting fixtures on his online platforms. In addition to trademark, unfair competition, and related claims, plaintiffs alleged that defendants used plaintiffs' photograph on defendants' website. Regarding fair use of the photographs, the court held that the defendant's use was not transformative because it simply took photographs from plaintiffs' website to advertise on its own website. The use was "strictly commercial and added nothing." The second factor also weighed in favor of the plaintiffs, as the art of photography has "generally been deemed sufficiently creative." Furthermore, the fixtures were staged and lit dramatically, showing expression further than just pointing a camera at something. As for the third factor, the "Defendants did little more than reproduce Plaintiff's images on its website." The court held that there is a "presumption of market harm" (quoting McGucken v. Newsweek LLC 464 F.Supp3d 594, 609 (S.D.N.Y. 2020)) when a commercial use of the material is mere duplication, as was held to be the case here. Therefore, the court held the fourth factor weighed in favor of the plaintiffs, and the court granted plaintiffs' motion for summary judgment. (Ed note: This was primarily a trademark "passing off" case. If defendants had been using plaintiffs' photos to show plaintiffs' lighting designs it was selling, the analysis might have been different. Here, however, the defendants were found to be using plaintiffs' photos to sell "knockoffs" of plaintiffs' furniture and lighting designs. Even though there was probably no market for plaintiff's photographs, the court came down hard on the defendants' "wholesale copying for pecuniary gain." The decision imposed discovery sanctions, civil contempt sanctions, punitive trademark damages, and maximum statutory copyright damages on defendants, in addition to requiring them to pay attorney's fees.) | Plaintiff's motion for summary judgment | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Dermansky v. Hayride Media, LLC, No. CV 22-3491, 2023 WL 6160864 (E.D. La. Sept. 21, 2023). | 09/21/23 | Plaintiff is a professional photographer whose work mostly covers energy and environmental issues in Louisiana and the southern United States. Defendant operates an online news blog and website offering "conservative political commentary ... covering Louisiana and national politics and current affairs." Plaintiff alleged that the defendant used two of plaintiff's photographs on its blog without permission and failed to provide attribution. Defendant argued fair use. The court held that first factor favored the plaintiff, as defendant made commercial profits through ad revenue on the website, even if the reasons for use of the photographs were noncommercial. The court then leaned on Warhol for its transformativeness analysis. Because both parties "used the Groby and Chambers Photographs as illustrative aids for online news articles," defendant's use was not transformative. Defendant argued that the photographs were used in commentary or criticism of the topic in the article, but the court reasoned that accompanying a work of criticism does not mean that "the purpose of the use of the image itself is for criticism." Because Defendant did not criticize the photographs themselves, the use is not covered under that protected definition or considered a tranformative use. For the second factor, the court found that the nature of the photographs leaned towards creative work and thus this factor also favored the plaintiff. The third factor was also held in favor of the plaintiff, as the defendant used the photographs in their entirety. For the last factor, the court held that there was market harm and that the defendant's uses of the photographs were "market substitutes" for plaintiff's original works. The court concluded that defendant's use was not fair use. | Defendant's motion for summary judgment; Cross-motion for summary judgment | Not fair use | 5th | E.D. La. | Pictorial, graphic, and sculptural works | Photograph |
| Cramer v. Netflix, Inc., No. 3:22-CV-131, 2023 WL 6130030 (W.D. Pa. Sept. 18, 2023). | 09/18/23 | Plaintiff is a tattoo artist who tattooed a picture of Joe Exotic, famous from the Netflix series Tiger King, onto her husband's thigh. When Netflix used a photograph of the tattoo in a montage during a second season episode of Tiger King recapping the cultural phenomenon of the first season, plaintiff sued Netflix for copyright infringement. Weighing the factors for fair use, the court first held that the use was transformative, because the photograph of the tattoo was used in a montage alongside other viral reactions to Season One of Tiger King to demonstrate the cultural impact of the show and fell into criticism, œcomment, reporting that is expressly defined as fair use by the Copyright Act. Relying on Andy Warhol Foundation v. Goldsmith, the court further made the distinction that Plaintiff's use was to support her tattoo business, while Netflix's use was to show the public reaction to the first season of the Tiger King series. This factor weighs in favor of Netflix. The second factor weighs in favor of the Plaintiff as the work is creative, but the court limits the weight of this factor given the transformativeness of the use. The third factor weighs in favor of Netflix, because the entirety of the tattoo was needed in its transformative purpose. The fourth factor weighs in favor of netflix as the Plaintiff and Netflix are in wholly unrelated industries and have different products and would in no way usurp the market for the original. Because the analyzed factors weigh so strongly in favor of fair use, the court entered judgment in favor of the defendant as a matter of law and dismissed the case with prejudice. (Ed. note: This case was decided on a motion to dismiss, analysis of which is often limited to the complaint and answer. Here, the court took judicial notice of the contents of a flash drive containing the relevant episode of the Tiger King series and discussed the contents of the episode in its opinion.) | Motion to dismiss | Fair use | 3d | W.D. Pa. | Pictorial, graphic, and sculptural works | Photograph |
| Triller Fight Club II LLC v. The H3 Podcast, No. LA CV21-03942 JAK (KSX), 2023 WL 11877604 (C.D. Cal. Sept. 15, 2023). | 09/15/23 | Plaintiff is copyright ownerand publisher of the Triller Fight Club broadcast. Defendants published a video podcast episode critiquing a 2021 Jake Paul vs. Ben Askren boxing match broadcast by plantiffs and including short portions of that broadcast, but also posted a "unlisted" YouTube video containing an unauthorized copy of fourteen minutes of the broadcast. The court held that ctiriquing the fight's quality and the subjects of the video was transformative and suggested an appropriate amount was used, but posting the unlisted 14-minute video of the fight was likely not, even though the unlisted video was only viewed 65 times, as opposed to over a million views for the podcast video. The court concluded that "all of the factors weigh at least somewhat against a finding of fair use," at least at the motion to dismiss stage, but that "Defendants' fair-use defense may be considered again later in the case based on a more complete factual record." | Motion to dismiss | Likely not fair use | 9th | C.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Viral DRM, LLC v. Frank Kent Country, LLC , No. 3:23-CV-0250-D, 2023 WL 5284844 (N.D. Tex. Aug. 16, 2023). | 08/16/23 | Plaintiff is the copyright holder of an original video depicting a pickup truck driving through a tornado. Defendant is an automobile dealership who shared the video on its Facebook page along with accompanying audio of a Chevrolet advertisement. Because the advertisement containing the video was not transformative and clearly commercial in nature, the purpose and character of the use of the video weighed against fair use. Because the video was a factual portrayal of a real event and had already been published and widely disseminated on the internet, the nature of the copyrighted work weighed in favor of fair use. Because the advertisement used much of the entire video, the amount copied weighed strongly against fair use. With the fourth factor, the court held that the use of the advertisement having a market impact on the plaintiff's ability to license the video is plausible. However, such a conclusion cannot be made without more information about the plaintiff's licensing scheme which would come out during discovery. Because three of the four factors weighed against the advertisement being fair use, the defendant's motion to dismiss was denied. | Motion to dismiss | Likely not fair use | 5th | N.D. Tex. | Motion pictures and other audiovisual works | Motion picture |
| Campbell v. Gannett Co., Inc., No. 4:21-00557-CV-RK, 2023 WL 5250959 (W.D. Mo. Aug. 15, 2023). | 08/15/23 | Plaintiff took a photograph of National Football League (NFL) coach Katie Sowers and licensed it for use in a Super Bowl ad. Defendant Gannett Co. used the photograph in advertisements for its annual poll to rate Super Bowl commercials (including that ad that used Plaintiff's photograph). Defendant did not use it in the actual survey but only in advertisements for the survey. In analyzing the four factors weighed in determining fair use, the court held that it was reasonable to conclude that "Defendants' use of the Sowers photo was of a commercial nature, and not for nonprofit educational purposes." Furthermore, it was "virtually identical" and not transformative. Plaintiff's "artistic choices and manner of expressing the significance of Ms. Sowers' participation in the 2020 Superbowl were mostly creative." The court held that because the purpose and character of Defendants' use weighs against fair use, that purpose did not justify usage of the entire photo in high resolution. Finally, the Court found that a question of triable fact remained as to whether the market effects factor weighs against a finding of fair use. The other factors however, resulted in Defendants failing to meet their burden on their fair use affirmative defense. | Defendant's motion for summary judgment | Fair use not determined | 8th | W.D. Mo. | Pictorial, graphic, and sculptural works | Photograph |
| Chosen Figure LLC v. Kevin Frazier Prods., Inc., No. 222CV06518MEMFMAAX, 2023 WL 4673253 (C.D. Cal. July 19, 2023). | 07/19/23 | Plaintiff is a professional photographer who registered a copyright of a photograph of the celebrities Rihanna and A$AP Rocky. Rapper Lil Uzi Vert reproduced the photograph on his Instagram Stories with a text caption superimposed. Defendant, an entertainment news website, subsequently published an article about Lil Uzi Vert's reaction to the photograph and included a screenshot of the Instagram Story within the article. In analyzing the purpose and character of the use, the court acknowledged that the photograph was used in the context of news reporting. However, the court held that the photograph was clearly used for commercial purposes and was not transformed, and therefore the purpose and character of the use of the photograph weighed against fair use. Second, the court held that because professional photographs such as those taken by the plaintiff require a degree of technical skill and creative judgement, the nature of the copyrighted photograph weighed against a finding of fair use. Likewise, the amount and substantiality of the photograph used weighed against fair use because the photograph was a wholesale copy of the original work, albeit through a screenshot of Lil Uzi Vert's Instagram Story. Finally, the court held that the defendant had not shown that its use of the photograph had no impact on the licensing market for the photograph and thus weighed against fair use. Because all four factors weighed against a finding of fair use, the defendant's motion to dismiss the claim of copyright infringement was denied. (Ed note: this is a surprising decision because the defendant was reporting on an Instagram story that itself was the news. Judges in the Southern District of New York have distinguished between uses such as these, see e.g. Walsh v. Townsend, and Whiddon v. Buzzfeed, Inc., 638 F. Supp. 3d 342 (S.D.N.Y. 2022), and situations in which the defendant uses the photo merely to illustrate a story. Though this court considered those cases, it went in another direction.) | Motion to dismiss | Likely not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Facility Guidelines Inst., Inc. v. UpCodes, Inc., 677 F. Supp. 3d 955 (E.D. Mo. 2023). | 06/15/23 | Plaintiff is a nonprofit corporation and publisher of copyrighted building guidelines and model codes for designing and building healthcare facilities. Defendant is the operator of a for-profit website that publish state and local building codes. Defendant published substantial portions of guidelines on its website at no cost to users. Plaintiff sued for copyright infringement and moved for a preliminary injunction. The court denied the motion because the defendant's actions likely constitute fair use. Weighing the various fair use factors, the court found defendant's publishing of the guidelines was sufficiently transformative because its purpose was to educate members of the public about the law and was not commercial in nature, even if defendant receives a tangential benefit of drawing users to its website to pay for premium content. On the second factor, the nature of the work being wholly factual and mostly already adopted into law rather than a creative work weighed in favor of fair use, and there was a strong public interest in the work being disseminated. Third, although the defendant copied almost the entirety of the plaintiff's guidelines, it was the minimum reasonable amount needed to achieve the transformative purpose because much of the guidelines constituted enacted law and thus weighed in favor of fair use. Finally, the court acknowledged that market effect might slightly weigh against fair use, but it is speculative since the plaintiff offered no evidence of any market harm. Weighing all these factors, the court denied the plaintiff's injunction because the defendant's actions likely constitute fair use and there is not a fair chance that the plaintiff will succeed on its copyright claim. (Ed. note: The court relied on the "Government Edicts Doctrine" outlined in Georgia v. PublicResource.org, 590 U.S. 255 (2020) and its application to model codes. "There is a public interest in protecting copyrights," it held, but " there is a competing public interest in unfettered access to the law. Here, the public's interest in unfettered access to the law, specifically access to building codes for health care facilities outweighs the public's interest in enforcing a copyright. Such a finding is germane to the fair use analysis conducted above.") | Preliminary injunction | Likely fair use | 8th | E.D. Mo. | Literary works | Legal rules and standards |
| Pearson Educ., Inc. v. Chegg, Inc., No. 21-16866, 2023 WL 3775317 (D.N.J. June 3, 2023). | 06/02/23 | Defendant Chegg created study guides to Plaintiff Pearson's textbooks that reproduced Pearson's questions at the end of chapters. Defendant moved to compel discovery on Defendant's external and internal communications regarding the reasonableness of its conduct under industry custom and practice. The Special Master granted the motion, holding that in Google v. Oracle, though "the Court did not expressly use the terms “reasonableness” or “custom and practice” in its analysis...it nevertheless conducted a robust analysis into the relevant industry's custom and practice of copying API and the reasonableness thereof under the specific circumstances." Further, in asessing both transformativeness and the effect on the market, the court held that the Supreme Court's analysis in Google "aligns with industry custom and practice, as it expressly recognized the established methods utilized by software developers." | Discovery Request | Other | 3d | D.N.J. | Literary works | Educational Materials |
| Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). | 05/18/23 | Defendant/Petitioner Warhol Foundation sought declaratory judgment that Andy Warhol's "pop art" visual works utilizing a photograph of musician Prince constituted fair use. Plaintiff, a photographer, counterclaimed for copyright infringement. The original work had been licensed by Plaintiff's agency to Vanity Fair magazine in the early 1980s, which commissioned Warhol to create the artwork; Warhol also created 15 additional works from the same photo. Decades later, Warhol Foundation licensed one of the other 15 prints to Conde Nast for a special magazine issue. The Second Circuit held that the Warhol Foundation's use was not fair use. The Supreme Court addressed only the first fair use factor, purpose and character of the use. The Court held that the less transformative a work is, the more the commercial nature of the use will weigh against fair use. Ultimately, the court held that the use of the photograph was insufficiently transformative because the use of the Goldsmith's photograph was substantially similar to the use of AWF in licensing the work in a magazine. These similar purposes, combined with the undisputed commercial nature of the defendant's licensing of the artwork, resulted in the Court affirming the Court of Appeals ruling that the purpose and character of the use by the defendant weighed against fair use. Justice Kagan wrote a blistering dissent. Ed. note: The Court made clear that it was not addressing whether the creation of the work itself constituted fair use or was sufficiently transformative. This was a narrow holding that the licensing of the work was relevant to the transformative use assessment. This opinion also did not make a determination on the fair use itself, but rather the first factor that was in dispute. It is important to note that the Court expressly reaffirmed the Campbell v. Acuff-Rose and Google v. Oracle decisions. One key lesson coming out of this case is that a licensing relationship gone awry (which apparently happened here, though the terms of the license to Warhol are lost to history) carries heightened risk. | Plaintiff's motion for summary judgment; Defendant's motion for summary judgment | Not fair use | S. Ct. | U.S. Supreme Court | Pictorial, graphic, and sculptural works | Photograph |
| Smith v. L. Off. of Richard St. Paul, Esq., PLLC, No. 22 CV 5648 (VB), 2023 WL 3570606 (S.D.N.Y. May 18, 2023). | 05/18/23 | Plaintiff is a professional photographer and copyright owner of a photograph of a Housing and Urban Development ("HUD") administrator touring the Patterson Houses public housing development in New York. he photo was originally licensed to the Wall Street Journal and published in an article on its website. Defendant, a law firm, owns and operates a website on which it includes news content. Plaintiff discovered defendant used the Photograph on its website as part of a blog post without licensing or permission, in which defendant reproduced the Journal Article but omitted the Photo Credit (the "St. Paul Post") and sued for copyright infringement. On defendant's motion to dismiss for fair use, the court held the use of the photograph was not transformative, as it was used for the original purpose the author used it for--to be featured along with a news article. Defendant used the entire photograph while also copying the Wall Street Journal article word for word, and likely "usurp[ed] demand for the protected work by serving as a market substitute," meaning the fourth factor would also weigh against fair use here. The court denied the defendant's motion to dismiss for fair use. | Motion to dismiss | Likely not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Graham v. Prince, No. 15-CV-10160 (SHS), 2023 WL 3383029 (S.D.N.Y. May 11, 2023). | 05/11/23 | Plaintiffs are registered copyright holders of photographs of a Rastafarian smoking and Sonic Youth member Kim Gordon. Defendant Prince is a well-known "appropriation artist" known for transforming someone else's original image or text into a work of art using strategies such as aesthetic alteration, recontextualization, or cultural commentary. Defendant incorporated third parties' Instagram posts that included the photos and created large-format artworks containing the posts and his comments on them. Defendant invoked a fair use defense and moved for summary judgment. The court held the purpose and use of the photographs were insufficiently transformative because they simply added an Instagram frame and the Defendant's own Instagram comments, and left the presentation, color palette, and mood of the photographs themselves wholly unaltered, and defendant. The nature of the copyrighted photographs cut against fair use because the professionally taken photographs were inherently creative and artistic. The amount and substantiality of the photographs used weighed against fair use because the entire photographs were used. Finally, the court held that the effect on the market factor weighs slightly in favor of fair use because the primary markets for the plaintiff and defendant likely have little overlap, although this finding was somewhat speculative. Upon balancing the four factors, the court held they weighed strongly against fair use and denied defendant's motion for summary judgment. | Defendant's motion for summary judgment | Likely not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Apple Inc. v. Corellium, Inc., No. 21-12835, 2023 WL 3295671 (11th Cir. May 8, 2023) (per curiam). | 05/08/23 | Corellium created a virtualization software (CORSEC) that essentially allows one to use a virtual iPhone. Apple sued on infringement of operating systems, icons and wallpapers, and contributory infringement. District court held using the operating systems was fair use and granted summary judgment to Corellium on icons, wallpapers, and contributory infringement. The Eleventh Circuit agreed in part. Fair use analysis: (1) Purpose and character of the use: favors fair use because CORSEC added new features that aren't ordinarily available, has a different purpose of helping security researchers do their work in a way physical iPhones can't, and doesn't supersede the original work because it is a virtual phone and cannot perform the functions a physical iPhone can like call and text. The court noted that although the use was commercial, many fair uses have a commercial purpose and that is not dispositive of the first factor. (2) Nature of the copyrighted work: favors fair use because computer programs are primarily functional and iOS is a computer program. (3) Amount and substantiality copied: the analysis favors fair use because the amount of copying was tethered to a valid and transformative purpose. All of the copied code was necessary to enable security researchers to fulfill their purpose to the greatest extent; flaws may be found anywhere in the code. (4) Effect on market value: this factor favors fair use because CORSEC is a poor substitute for a real iPhone (can't call or text) and Corellium has only sold 40 units of its product. The court also considered the impact on derivative markets, but said that the product was transformative and not derivative. Thus, it has no impact on a derivative market. The court remanded on other counts because they had not been fully considered by the district court. | Defendant's motion for summary judgment | Fair use | 11th | 11th Cir. | Literary works | Software |
| I Dig Texas, LLC v. Creager Servs., LLC, No. 22-CV-0097-CVE-JFJ, 2023 WL 3066119 (N.D. Okla. Apr. 24, 2023). | 04/24/23 | I Dig Texas (IDT) and Creager Services both sell skid steer attachments (attachments to wheel loaders), including post drivers. Creager sells post drivers that are manufactured in Texas. IDT created an advertisement with two photographs displaying post drivers sold by Creager, featuring the phrase "Made in China" in a red circle with a line through it, and claimed IDT manufactured its product in the U.S. Creager obtained a copyright for the two images and sued IDT for copyright infringement. The court found that IDT's use of the photographs, although commercial , was acceptable as comparative advertising. The court held the photographs themselves were not creative or artistic, and this factor was thus neutral and that although IDT used a "full reproduction" of the photographs, Creager had no evidence there was a market for the photographs, and this weighed in favor of fair use. The court held IDT engaged in fair use, and summary judgment was granted in favor of IDT. | Plaintiff's motion for summary judgment; Defendant's motion for summary judgment | Fair use | 10th | N.D. Okla. | Pictorial, graphic, and sculptural works | Photograph |
| Brody v. Fox Broad. Co., LLC, No. 22CV6249 (DLC), 2023 WL 2758730 (S.D.N.Y. Apr. 3, 2023). | 04/03/23 | Plaintiff, a freelance photographer and photojournalist, filmed a motion picture of the insurrection at the U.S. Capitol on January 6, 2021, which captured a scene of a group of people in military attire marching in a "stack formation" the steps of the United States Capitol building. When charging one of the insurrectionists, Kelly Meggs, the FBI used a screenshot from the motion picture in the complaint with the "stack formation" circled in red. A local Fox affiliate news program later interviewed Meggs and broadcast the interview in two news segments. The segments showed the annotated movie still from the FBI complaint. Plaintiff sued Fox Broadcasting Company for copyright infringment. The court held that the affiliate's use of the annotated movie still was fair use primarily because (1) there is a strong presumption that news reporting is fair use, (2) Fox was adding commentary to the annotated movie still, (3) the amount of copying was limited to a single still, and (4) the news segments did not affect the market for plaintiff's motion picture. The court also noted the copyrighted work was factual and had been previously published. The court noted that fair use is strongest when its use clearly falls into one of the examples outlined in 17 U.S.C. § 107; here, news reporting. Ed. note: The court missed an opportunity to clarify that there is a very strong transformative use argument when using documents used in judicial proceedings. | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Vila v. Deadly Doll, Inc., No. 221CV05837ODWMRWX, 2023 WL 2655908 (C.D. Cal. Mar. 27, 2023). | 03/27/23 | Plaintiff is a professional photographer. Defendant Deadly Doll is a clothing manufacturer that incorporates artwork into its clothing. Plaintiff took a photograph of a model wearing Deadly Doll's pants; Deadly Doll posted that photograph on its Instagram. Plaintiff sued for copyright infringement and defendant counterclaimed with same. Defendant challenged the validity of plaintiff's copyright registration by arguing that plaintiff failed to identify the Photograph as a derivative work and disclose the Artwork as a preexisting work in his copyright application. The court ruled that the Photograph was not derivative because the pants are a useful article and the Photograph features the pants as a whole. Plaintiff was not required to disclose the artwork because the section that required disclosure only applied if the work at issue was a changed version, compilation, or derivative work. Therefore, plaintiff's copyright is valid. Plaintiff was granted summary judgment on the copyright infringement claim because Plaintiff demonstrated a valid copyright registration and defendant intentionally posted the Photograph on its Instagram. Defendant's counterclaim of copyright infringement fails because the Photograph was not a derivative work. The court declined to address defendant's fair use claim because it was undeveloped and only argued in a "passing statement." See also Vila v. Deadly Doll, Inc., No. 221CV05837ODWMRWX, 2022 WL 3636331 (C.D. Cal. Aug. 23, 2022) . | Plaintiff's motion for summary judgment | Fair use not determined | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| DBW Partners, LLC v. Market Sec., LLC, No. CV 22-1333 (BAH), 2023 WL 2610498 (D.D.C. Mar. 23, 2023). | 03/23/23 | Plaintiff is an investigative news and legal analysis company that provides regular reports to paid subscribers that analyze the effect of government policies on publicly traded corporations and market competition. Defendant is a financial services broker that provides advisory financial reports to its clients. Defendant allegedly obtained plaintiff's reports and republished a summary for clients. In a footnote, the court denied Defendant's request to analyze fair use on a motion to dismiss, because (among other things) the pleadings did not include sufficient facts to assess the fair use defense. | Motion to dismiss | Fair use not determined | D.C. | D.D.C. | Literary works | News material |
| Concannon v. LEGO Sys., Inc., No. 3:21-CV-01678 (JBA), 2023 WL 2526637 (D. Conn. Mar. 15, 2023). | 03/15/23 | Plaintiff is a multidisciplinary artist and designer that designed a jacket for Antoni Porowski, an expert on the Netflix Series Queer Eye. Defendant sold LEGO sets that featured Porowski wearing the jacket plaintiff designed. Defendant moved to dismiss on fair use grounds (among other grounds). The court considered the four fair use factors in the analysis. Purpose and character favored plaintiff because it was unclear whether the defendant's use was transformative without more facts being laid out and what the commercial gain obtained from including the jacket. Nature: although the handpainted design elements on the plaintiff's jacket clearly was creative, the court couldn't determine the weight of this factor without more information on defendant's purpose behind recreating and distributing the jacket. Amount and substantiality weighed in favor of plaintiff because defendant copied a substantial portion of the copyrighted jacket. Effect on market: plaintiff would be given the chance to develop the record on this factor on a motion for summary judgment since it maintained an active license on the work. The case did not pass the motion to dismiss stage because the court held the defendant did not include enough facts in its answer to the plaintiff's complaint that enabled the court to make a fact-intensive ruling as a matter of law. The court denied the defendant's motion to dismiss on fair use but indicated it would consider this defense on a summary judgment record. Ed. note: Articles of clothing are not protectible unless a feature of the clothing can be perceived as a separate work that would qualify for protection on its own. It is somewhat surprising that the court did not even address this test in its analysis of the second factor, "nature of the copyrighted work." | Motion to dismiss | Fair use not determined | 2d | D. Conn. | N/A | N/A |
| Creative Photographers, Inc. v. Julie Torres Art, LLC, No. 1:22-CV-00655-JPB, 2023 WL 2482962 (N.D. Ga. Mar. 13, 2023). | 03/13/23 | Plaintiff is a photography agency; defendants created screen prints, mixed media works and limited-edition prints of artwork that incorporates a photograph by a photographer who had contracted with the agency. The court held that the photography agency lacked standing to sue because its agreemen with the photographer had not conveyed exlusive rights. Defendants also allege fair use as an affirmative defense, but the court declined to address it on a motion to dismiss, as it is a fact intensive matter. | Motion to dismiss | Fair use not determined | 11th | N.D. Ga. | Pictorial, graphic, and sculptural works | Photograph |
| Med. Imaging & Tech. All. v. Libr. of Cong., No. CV 22-499 (BAH), 2023 WL 2387760 (D.D.C. Mar. 7, 2023). | 03/07/23 | Plaintiffs, medical device trade associations, challenged decision by Librarian of Congress to grant an exemption to the anticircumvention provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1)(C). The exemption permitted accessing copyrighted software for the purpose of diagnosis, repair, and maintenence. To assess the exemption, the Librarian had to consider specific factors including the availability of copyrighted works for use, their availability for nonprofit purposes, their impact on criticism, comment, news reporting, teaching, scholarship, or research, their effect on the market and value of copyrighted works, and any other factors the Librarian deemed appropriate. The court agreed with the Librarian of Congress's arguments, including: the prohibition on circumvention hindered the use of medical equipment software and manuals for legitimate diagnostic, maintenance, and repair purposes, and these works were not readily available and broadly licensed; Congress exempted itself and the Librarian from Administrative Procedure Act (APA) review; the DMCA rulemaking framework did not breach the constitutional separation of powers, as the Librarian's appointment adhered to the Appointments Clause and was supervised by the Chief Executive. Ed. note: though the court did not conduct a fair use analysis, the 17 USC §1201 rulemaking process has been described as a "fail-safe" mechanism to ensure Section 1201 does not restrict fair use and other lawful uses. | Plaintiff's motion for summary judgment | Fair use | D.C. | D.D.C. | Literary works | Software |
| Krafton, Inc. v. Apple, Inc., No. CV 22-209-GW-MRWX, 2023 WL 2628068 (C.D. Cal. Feb. 24, 2023). | 02/24/23 | Plaintiffs are video game holding companies that own the game "PlayerUnknown's Battleground." Defendants include YouTube which hosted a number of videos containing a feature-length Chinese film titled "Biubiubiu" that is alleged to be a live-action dramatization of Battlegrounds posted by the film's distributor. Youtube filed a motion to dismiss and asserted fair use defense. The court held that at least three of the four fair use factors the court must consider could be better informed by the development of evidence via discovery. Motion to dismiss denied. (The bulk of the opinion concerned substantial similarity, which the court also held could not be decided at this stage.) | Motion to dismiss | Fair use not determined | 9th | C.D. Cal. | Motion pictures and other audiovisual works | Video game |
| Canadian Standards Ass'n v. P.S. Knight Co., 649 F. Supp. 3d 334 (W.D. Tex. 2023). | 01/04/23 | Plaintiff is a Canadian nonprofit that publishes building standards and codes. Defendants published copies of the standards and codes in the United States. The court rejected defendants' fair use argument, noting that there was nothing transformative about defendants' use, and "defendants could not be clearer about their intent to profit from the sale" of plaintiff's copyrighted work. The court thus rejected the defendants' fair use defense. Ed. note: The court distinguished between this case and American Society for Testing & Materials v. Public.Resource.Org on the grounds that unlike in that case, the purpose of the defendants' use in this case was nakedly competitive. A key defendant's defiant blog posts, thumbing his nose at plaintiffs and the Canadian copyright system, surely did not help. | Defendant's motion for summary judgment | Not fair use | 5th | W.D. Tex. | Literary works | Legal rules and standards |
| Kipp Flores Architects, LLC v. Pradera SFR, LLC, No. SA-21-CV-00673-XR, 2023 WL 28723 (W.D. Tex. Jan. 2, 2023). | 01/02/23 | Plaintiff, an architectural firm, filed a copyright infringement suit against a group of real estate developers and third parties in service to the developers. Plaintiff owned copyrights in residential designs. The designs were licensed to defendants for real estate development work in the Austin, Texas market. Defendants later hired another architectural firm to create similar designs based on copies of plaintiff's architectural works. Plaintiff moved for partial summary judgement on defendant's affirmative defense of fair use, which was denied withotu analysis because issues of fact remained as to whether infringement had taken place. | Plaintiff's motion for summary judgment | Fair use not determined | 5th | W.D. Tex. | Architectural works | Architectural |
| Bell v. Milwaukee Bd. of Sch. Directors, No. 22-C-0227, 2022 WL 18276966 (E.D. Wis. Dec. 21, 2022). | 12/21/22 | Plaintiff is the author of a nonfiction book containing a famous passage about winning and is the copyright owner of that passage. The passage has been widely circulated on the Internet for free via the author's own website or other means. Plaintiff has filed over 25 copyright infringements suits against public schools or nonprofits for use of the passage. Defendants are a public school board located in Milwaukee and a basketball coach who retweeted a post containing an image of the famous passage. Plaintiff sued and defendants filed a motion to dismiss on fair use grounds. The court concluded that the first factor, purpose and character of the use, weighed in favor of defendants. The court analyzed three considerations under this first factor: (1) whether the allegedly infringing use was "transformative"; (2) whether the use was in good or bad faith; and (3) whether the use was commercial or noncommercial. The use was not particularly transformative, because defendant's retweet added nothing new to the work, so this factor weighed in favor of plaintiff. The court found the good faith analysis favored defendants because the school board had no obligation to make the basketball coach delete his tweet if the retweet constituted fair use. The third consideration also favored defendants, because the passage was retweeted for the purpose of spreading inspirational quotes to students, and defendants did not publish anything that was not already widely available online. On the second fair-use factor, the court concluded that since the copyrighted work is a work of nonfiction that contains elements of creativity, and that the work is published as opposed to unpublished, this factor slightly favored plaintiff. On the third fair-use factor, the court concluded that the amount and substantiality of the portion used were reasonable in relation to the purpose of the copying, which was to inspire and motivate defendant's Twitter followers. On the last fair-use factor, the court concluded that plaintiff did not establish how the retweets harmed the market for his work or any derivative markets. On the contrary, defendants helped promote the passage which potentially increased sales of plaintiff's book. Therefore, the fourth and the most important factor clearly favored defendants. | Motion to dismiss | Fair use | 7th | E.D. Wis. | Literary works | Book |
| Auslander v. Tredyffrin/Easttown Sch. Dist., 630 F. Supp. 3d 674 (E.D. Pa. 2022). | 12/05/22 | Plaintiff brought § 1983 action against school district, alleging First Amendment violation arising from district's refusal to allow him to make copies of copyrighted educational materials used by school which were provided by private contractor. Parties cross-moved for summary judgment. The court held that the refusal to allow plaintiff to record the materials did not violate plaintiff's First Amendment rights and plaintiff could not use his potential fair use of the copyrighted materials as a "sword." | Defendant's motion for summary judgment | Fair use not determined | 3d | E.D. Pa. | Literary works | Educational materials |
| Westwood v. Brott, No. 22-CV-03374-CRB, 2022 WL 17418975 (N.D. Cal. Dec. 5, 2022). | 12/05/22 | Plaintiff sued Defendant, editor the blog "Talking About Men's Health" for publishing one of Plaintiff's illustrations on the blog. The court denied plaintiff's motion to strike defendant's fair use defense with little comment, holding that "whether the article in question is an informational article designed to educate others or a commercial endeavor are precisely the sorts of factual issues best left for summary judgment." | Other | Fair use not determined | 9th | N.D. Cal. | Pictorial, graphic, and sculptural works | Art |
| Robinson v. Visio, LLC, No. 4:22-CV-928 SRW, 2022 WL 17356866 (E.D. Mo. Dec. 1, 2022). | 12/01/22 | Plaintiff alleged defendants committed copyright infringement by publishing on a website a photograph plaintiff had taken. Defendants argued that fair use applied because the image used was reduced in size, not shown as a creative work, and was not a substitute for the original; they used the image with a public service announcement; and the use of the image was de minimis at best. The Court declined to decide factual issues such as the effect of the use on the potential market for or value of the copyrighted work at the motion to dismiss stage and denied defendant's motion to dismiss. | Motion to dismiss | Fair use not determined | 8th | E.D. Mo. | Pictorial, graphic, and sculptural works | Photograph |
| Whiddon v. Buzzfeed, Inc., No. 22 CIV. 4696 (CM), 2022 WL 17632593 (S.D.N.Y. Dec. 13, 2022). | 10/31/22 | Plaintiff took three photographs of her friend posing in front of a motorcycle accident and the other two showed her being cared for in the aftermath of the motercycle accident. She posted the pictuters on Instagram and it started an uproar. Defendant Buzzfeed published an article about the motorcycle accident and the controversy surrounding it. For transformative use, Buzzfeed argues that its use of the three photographs was transformative, because the photographs help to explain a controversy involving plaintiff's social media post, and the photographs contained therein. The court favored Buzzfeed in this factor. For the second factor, the court sided with plaintiff but noted that the second factor isn't given as much weight. For the third factor, the court sided with Buzzfeed and held that using the entirety of each photograph in the post was necessary to provide the full context of the subject of the controversy. For the last factor, the court held the defendant's use plainly had and has no effect on any market for plaintiff's photographs, supporting fair use. Because 3/4 of the factors supported the defense and because the second factor wasn't given as much weight as the first factor, the court held fair use. A motion for consideration was later denied. Whiddon v. Buzzfeed, Inc., No. 22 CIV. 4696 (CM), 2022 WL 17632593 (S.D.N.Y. Dec. 13, 2022). | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Yout, LLC v. Recording Indus. Ass'n of Am., Inc., 633 F. Supp. 3d 650 (D. Conn. 2022). | 09/30/22 | Plaintiff Yout offered a website "yout.com" which allowed subscribers to create a local copy of any URL on the internet and download it in a chosen format. Defendant RIAA filed several notices to Google calling for the removal of yout.com for violations of the Digital Millenium Copyright Act (DMCA). Google accordingly removed yout.com and its Paypal account, causing immense financial and reputational harm to plaintiff. Plaintiff sued for declaratory judgment that it did not violate the DMCA. The court granted the RIAA's motion to dismiss Yout's declaratory judgment claim. The court's reasoning was that Yout offered a circumventing technology in violation of 17 U.S.C. § 1201, which states that "No person shall circumvent a technological measure that effectively controls access to a copyrighted work. 17 U.S.C. § 1201. Yout argued that its users perform lawful and fair use activities through yout.com. However, the court held that "downstream users' lawful or fair use of a platform does not relieve that platform from liability for trafficking in a circumventing technology." | Motion to dismiss | Fair use not determined | 2d | D. Conn. | Motion pictures and other audiovisual works | Motion picture |
| Hayden v. 2K Games, Inc., 629 F. Supp. 3d 736 (N.D. Ohio 2022). | 09/20/22 | Tattoo artist designed tattoos of NBA athletes including Lebron James and Tristan Thompson and alleged developer of the popular video game NBA 2K infringed copyright in those tattoos by displaying them in their video game without license. The court weighed all four factors of the fair use analysis and found the following: (1) Purpose and Character of the use - "reasonable jurors could disagree about whether "“ or to what extent "“ Defendants' use is transformative and what weight should be accorded to commercialism" (2) Nature of the copyrighted work - "Plaintiff's work is, without question, expressive and creative rather than factual and informational" (3) Amount and Substantiality of the Portion Used - "The Tattoos are used in their entirety; but the degree of observability is up to the jury, as is the importance of their use to the video game as a whole" (4) Market Effect - "Plaintiff bears the burden of showing that there is a potential market for the use of the Tattoos as they appear in Defendants' video games. Defendants' use of the entirety of the six Registered Tattoos weighs in favor of Plaintiff; but since a jury could find that the likelihood is less that someone might choose to acquire tattoos from Defendants' video games, rather than obtain tattoos from Plaintiff, that evidentiary weight is reduced. The burden of proving a potential market remains with Plaintiff and genuine factual disputes are within the jury's purview." See also Hayden v. 2K Games, Inc., No. 1:17CV2635, 2022 WL 3097382, (N.D. Ohio Aug. 4, 2022) (denying in part expert testimony on market because it is speculative). | Defendant's motion for summary judgment | Fair use not determined | 6th | N.D. Ohio | Pictorial, graphic, and sculptural works | Tattoo |
| Pickersgill v. Egotist, LLC, No. 22-cv-01037-CMA-NRN, 2022 WL 4235012 (D. Colo. Sept. 14, 2022). | 09/14/22 | A photographer created a series of artistic photos called "Removed" showing "people, in various poses, as if engrossed in their electronic devices, but there is no electronic device in any of the subjects' hands." Defendant, a platform known as "the Egotist," argued that because it was publishing a legitimate news article about the photographs, including commentary, it was fair use to use some of the photographs to provide context. The magistrate judge rejected this argument and found "little-to-nothing transformative" about the Egotist's article. The court discussed a "spectrum" of fair uses with a long New Yorker article at one end, and "Check out these cool pictures!" at the other. The court likened defendant's use to the latter end of the spectrum. The magistrate judge recommended that the district court deny defendant's motion to dismiss. | Motion to dismiss | Not fair use | 10th | D. Col. | Pictorial, graphic, and sculptural works | Photograph |
| Sony Music Entertainment v. Vital Pharmaceuticals, Inc., No. 1:21-CV-22825, 2022 WL 4769055, (S.D. Fla. Sept. 13, 2022). | 09/13/22 | Defendant Bang Energy used plaintiff's sound recordings without a license in advertisements and sponsored influencer posts on social media. Plaintiffs sued for direct and secondary copyright infringement. Defendants claimed fair use. The court held that "characterizing the copyrighted works as providing different entertainment value does not render the use transformative." The court found that the third factor (amount and substantiality) was not met, declaring, "It can hardly be said that copyrighted works are qualitatively insubstantial simply because they are included in videos posted to TikTok, a platform Defendants concede is 'centered around short videos.'" On the fourth factor, the court rejected defendants' contention that Bang's conduct benefited plaintiffs by increasing the exposure and potential sales of plaintiffs' copyrighted works. | Plaintiff's motion for summary judgment | Not fair use | 11th | S.D. Fla. | Sound recordings | Sound recordings |
| Paul Rudolph Foundation v. Paul Rudolph Heritage Foundation, No. 20 CIV. 8180 (CM), 2022 WL 4109723 (S.D.N.Y. Sept. 8, 2022). | 09/08/22 | Parties are both nonprofits dedicated to preserving the works of architect Paul Rudolph. Plaintiff sued for copyright infringement and other causes of action, and also sought declaratory relief to confirm that Paul Rudolph's donated work belonged to the public. Defendant raised the affirmative defense of fair use. The court held that fair use "is a not a defense to a claim for a declaratory judgment of ownership" and granted plaintiff's motion to dismiss counterclaim. | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Monbo v. Nathan, 623 F. Supp. 3d 56 (E.D.N.Y. 2022). | 08/26/22 | Plaintiffs created two documentaries in 2001 and 2003 about an urban dirt-bike group in Baltimore called "12 O'Clock Boyz." Defendants created a 2013 documentary also called "12 O'Clock Boyz" that references and discusses the 2001 and 2003 documentaries. Defendants also created a feature film. Plaintiffs alleged the 2013 documentary and feature film infringed by copying "the characters, concepts, feel, and mood" of Plaintiffs' works. The court held that plaintiffs' claims failed due to lack of similarity and the copying of parts of the 2001 and 2003 fils was fair use. The court held the defendants' use of plaintiffs' work was transformative because the work plays a new role and context in the narrative of the 2013 documentary, and the portion of the work taken was quantitatively small. The excerpted portions were representative portions of the original but did not provide a substitute for the 2001 documentary. The court granted defendants' motion for summary judgment. Ed. note: Plaintiffs represented themselves pro se while defendants (which included Oscilliscope Pictures and Sony Pictures Entertainment) were represented by heavy-hitter firms Fox Rothschild and Katten Muchin. | Defendant's motion for summary judgment | Fair use | 2d | E.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:21-CV-32-KHJ-MTP, 2022 WL 3222892, (S.D. Miss. Aug. 9, 2022). | 08/09/22 | Plaintiff Emmerich, a regional newspaper publisher, sued Particle Media for copyright infringement. Particle Media developed an online application called "NewsBreak" which curated personalized news feeds for its users. The service crawled the web and copied news stories; it showed snippets or portions of the stories to customers comprising 20% or 50 words of the story. But it also displayed "the entirety of around 17,000 Emmerich articles on its website" on Android devices. Defendant moved for summary judgment as to fair use. The court denied the motion. As to the first factor, the court held that "Media's complete republication of Emmerich's work in fulltext format with no new purpose is not transformative." On the second factor, the court held, "While news articles are factual in nature, wholesale copying and redistribution is not a fair use." On the third and fourth factor, the court held that defendant's wholesale copying weighed against fair use. See also Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:21-CV-32-KHJ-MTP, 2022 WL 4360570 (S.D. Miss. Sept. 20, 2022) (precluding expert from testifying). | Plaintiff's motion for summary judgment | Not fair use | 5th | S.D. Miss. | Literary works | News material |
| McGucken v. Pub Ocean Ltd, 42 F.4th 1149 (9th Cir. 2022). | 08/03/22 | Plaintiff took several photographs of a unique environmental event, a lake forming in Death Valley. Defendant posted an article on one of its websites and included several of the Plaintiff's photos. The court weighed all four factors of the fair use analysis and found the following: (1) Purpose and Character of the use - Not transformative use and the article was commercial which "further cuts against the fair use defense." (2) Nature of the copyrighted work - McGucken's photos were creative "because they were the product of many technical and artistic decisions." Additionally, though a "work's unpublished status would weigh against fair use, 'the converse is not necessarily true." (3) Amount and Substantiality of the Portion Used - Even assuming Pub Ocean was justified in using a portion of the photos, "copying the entirety of twelve of them would be 'far more than necessary'." (4) Market Effect - Because "Pub Ocean's article is a ready market substitute for McGucken's photos and the articles that would license them", and "for some consumers, the article would be even better than a standalone collection of McGucken's photos or a shorter article with no other content," "Pub Ocean's "mere duplication of the photos "˜serves as a market replacement for [the originals], making it likely that cognizable market harm to the original[s] will occur.' " Monge, 688 F.3d at 1182"“83 (quoting Campbell, 510 U.S. at 591, 114 S.Ct. 1164)." Reversing McGucken v. Pub Ocean Limited, No. 2:20-cv-01923-RGK-AS, 2021 WL 3519295 (C.D. Cal. July 27, 2021) (Ed. note: A Doniger Burroughs case.) | Defendant's motion for summary judgment | Not fair use | 9th | 9th Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. July 18, 2022). | 07/18/22 | Plaintiff created a sculpture for use in adult films and sold it to a film company, but retained all copyrights and did not give the company or anyone else the right to use it commercially, except for a few specific parties. Defendant (Koons) traveled to Italy to be photographed with the adult film star using the sets, including the Plaintiff's sculpture, and created three infringing works that were displayed in galleries and museums, earning a substantial sum of money. The court acknowledged that although the fair use factors were presented, the "fair use inquiry is 'a holistic, context-sensitive inquiry' that requires a careful examination of all four statutory factors, and the results should be weighed together in light of the purposes of copyright." (Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 577-78 (1994)). Thus, the court found that fair use could not be determined at the motion to dismiss stage. The court further concluded that two of the fair use factors could not be fully evaluated at this stage: The Nature of the Copyrighted Work and Market Effects. Regarding the Nature of the Copyrighted Work, the court held that the extent to which plaintiff may have retained creative control over the first publication was unclear, thus a complete assessment of the "nature of the copyrighted work" could not be made on the face of the Complaint. With regard to Market Effects, the court noted that the assessment could not be made based solely on the Complaint as it was uncertain whether the market for the Original Work and Infringing Works "meaningfully overlap." | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Sculpture |
| De Fontbrune v. Wofsy, 39 F.4th 1214 (9th Cir. 2022). | 07/13/22 | Plaintiff first sued Defendants in France in the late 1990s for publishing volumes of a book, The Picasso Project, that reproduced photographs of Picasso's works. Plaintiff attempted to enforce a French copyright judgment on same. The district court determined that the use of the photographs fell within the fair use exception because the purposes of the uses were different. The Ninth Circuit considered whether enforcing the judgment would be "repugnant to United States public policy protecting free expression" and conducted a fair use analysis. The court held that defendant's reproduction of the photographs was commercial and non-transformative, and there was no evidence to counter the presumption of market harm. After weighing the four fair use factors, the court seriously doubted whether a fair use defense would protect defendant's copying of the photographs from copyright infinrgement. Therefore, defendant's inability to urge a fair use defense in France did not place the French judgment in direct conflict with fundamental American principles, and the defendant was not entitled to summary judgment based on the public policy defense. (Ed. note: This decision is important because the Ninth Circuit held that, before enforcing a foreign copyright judgment, courts must assess whether the judgment is in "direct conflict with a fundamental American principle," including freedom of speech, which means that courts must conduct a fair use analysis before enforcing the judgment. We are confounded, however, as to some of the panel's conclusions on fair use, including that a book for sale is automatically a "commercial work" without further inquiry; the refusal to consider how the works would be used differently and by different audiences; or the decision to treat a mere photograph of another's paintings as highly creative. The panel also neglected in its market factor analysis to "take into account the public benefits the copying will likely produce" and "whether those benefits [relate] to copyright's concern for the creative production of new expression" including new scholarship--considerations that could lead to a different result. Google LLC v. Oracle Am., Inc., 209 L. Ed. 2d 311, 141 S. Ct. 1183, 1206 (2021). It is not uncommon that important works of art are kept in warehouses or private collections, and the only way to conduct a comprehensive study is to access photographs previously taken of the work. The panel's holding could make that impossible, because a rightsholder can simply refuse or charge exorbitant amounts. This decision could have a chilling effect on art history scholarship. Reversing and remanding De Fontbrune v. Wofsy, 409 F. Supp. 3d 823 (N.D. Cal. 2019).) | Defendant's motion for summary judgment | Likely not fair use | 9th | 9th Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Oppenheimer v. Scarafile, 2:19-CV-3590, 2022 WL 2704875 (D.S.C. July 12, 2022). | 07/12/22 | Plaintiff, a nature photographer brought an action against a real estate company for featuring the photographer's aerial photos of the Charleston, South Carolina coastline in their real estate listings. The court found that defendant's use's purpose and character were commercial in nature, as defendant used the photographs for its real estate listings. The court further held that the copyrighted works were found to be creative, and defendant's use was substantial since defendant copied the entirety of the photograph. However, while fulfilling the first three factors of the fair use doctrine, plaintiff failed to establish sufficient undisputed facts to support the fourth factor, effect of the use on the value and potential markets of the work. | Defendant's motion for summary judgment | Fair use not determined | 4th | D.S.C. | Pictorial, graphic, and sculptural works | Photograph |
| Sedlik v. Drachenberg, No. CV 21-1102-DSF (MRWx), 2022 WL 2784818 (C.D. Cal. June 27, 2022). | 06/27/22 | Photographer of iconic portrait of Miles Davis sued tattoo artist who tattooed similar portrait on a subject. In determining fair use, the court held that it could not determine the first factor: the subjective belief of the wearer of a tattoo was not dispositive of transformativeness, and there was a triable issue as to transformativeness because the sketch is distinct from the original picture in several ways. With respect to the second factor, although a portrait is a photograph and is a creative work, the portrait was previously published in a magazine which made this factor weigh in favor of fair use. The third factor was not met because the tattoo artist copied numerous elements from the portrait. The fourth factor weighed in favor of fair use because there was no evidence that the tattoo was a substitute for the primary market for the portrait which was originally taken in a photoshoot for a magazine, not for use in the market for tattoos. The court denied the parties' cross-motions for summary judgment holding that issues of fact existed. After the Warhol Foundation decision, the court granted motions for reconsideration, and held in light of Warhol plaintiff had met his burden proof on transformativeness, but triable issues remained on commerciality and the other three factors. At trial, the jury found for the defendant. Plaintiff has appealed. (Ed. note: given that this dispute involved art inked on a human being's body, defendants asked the court to consider a non-statutory factor, "fundamental rights of bodily integrity and personal expression." The court declined to address the issue given that it had found triable issues of fact as to the statutory factors which warranted a denial of summary judgment.) | Cross-motion for summary judgment | Fair use not determined | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| United States v. Gordon, 37 F.4th 767 (1st Cir. 2022). | 06/23/22 | In this criminal copyright infringement case, defendant was convicted under 17 U.S.C.S. § 506(a)(1)(B) and 18 U.S.C.S. § 2319(a), (c)(1) and (2). The First Circuit found that there was sufficient evidence for the jury to find that defendant's copyright infringements were willful because he deliberately sold counterfeit movie DVDs, and the jury could have found that he acted knowing that his conduct was illegal, even though he argued that he believed his use was fair use. | Jury trial | Not fair use | 1st | 1st Cir. | Motion pictures and other audiovisual works | Motion picture |
| In re DMCA § 512(h) Subpoena to Twitter, Inc., 608 F. Supp. 3d 868 (N.D. Cal. 2022). | 06/21/22 | Anonymous Twitter user posted six tweets about billionaire Brian Sheth which included six photographs, each depicting a woman or a portion of a woman's body. The copyright to the photographs was owned by an LLC (plaintiff). The LLC requested that Twitter remove the copyrighted photographs and also requested issuance of a subpoena compelling Twitter to produce identifying information regarding the anonymous user. Twitter removed the photographs but challenged the subpoena on the grounds that revealing the identity of an anonymous online speaker would violate his First Amendment rights. The court held that the use in question constituted fair use, and thus the LLC had not stated a prima facie case of copyright infringement. The court weighed all four factors: (1) the use was not commercial and was transformative; though the photos have aesthetic value, the anonymous user did not use them for their artistry. Instead, the anonymous user gave the photos a new meaning by criticizing Brian Sheth's lifestyle. (2) The fact that the photos were already published at the time of the copying weighed in favor of fair use. (3) The court ruled that in the context of a photograph or drawing that "is not meaningfully divisible," the entire work must be used to preserve any meaning at all; thus, this factor was neutral. (4) The court found that the plaintiff did not offer sufficient explanation for how its financial interests in the copyrights could be harmed. Based on this fair use analysis, the court held that "significant First Amendment interests [were] at stake," and quashed the subpoena. The court also noted the mysterious and suspicous nature of the LLC asserting the copyright interest in the case. | Discovery Request | Fair use | 9th | N.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Sketchworks Industrial Strength Comedy, Inc. v. Jacobs, No. 19-CV-7470-LTS-VF, 2022 WL 1501024 (S.D.N.Y. May 12, 2022). | 05/12/22 | Plaintiff operates a sketch comedy company and created "Vape," an alleged theatrical parody of the theatrical version of the musical "Grease." Defendants are co-authors of Grease. Plaintiff sought declaratory judgment recognizing that Vape is not infringing because it is a parody. Plaintiffs asserted that Vape, which was written and directed by women, is fair use because it uses parody to criticize the misogynistic and sexist elements of Grease, as well as expose the rape-culture elements of the production. Defendants asserted that Vape infringed on their copyright, because it commented on society at large and not on Grease specifically. The court ruled in favor of plaintiffs, holding that Vape is fair use. The court held that Factor 1 was met because Vape mocks specific elements of Grease, changes specific elements of Grease to emphasize its misogynistic features, and generally relies on Grease to convey its central message about its misogyny. Factor 2 was met because parodies almost invariably copy publicly known, expressive works. Factor 3 was met because even though Vape took a substantial portion of Grease, doing so was not excessive because the use was necessary for Vape to achieve its parodic purpose. Also, Vape added new features. Factor 4 was met because Vape's potential harm to Grease's market value for derivatives is minimal since, as a parody, Vape can hardly be viewed as a derivative work. | Motion for judgment on the pleadings | Fair use | 2d | S.D.N.Y. | Dramatic works | Theater production |
| ICC Evaluation Serv., LLC v. Int'l Ass'n of Plumbing & Mech. Offs., Inc., No. 16-cv-54-EGS-ZMF, 2022 U.S. Dist. LEXIS 77720 (D.D.C. Apr. 27, 2022). | 04/27/22 | The parties are competitors in the market for the evaluation of building products, components, methods, and materials. Plaintiffs accused defendants of infringing their copyrights in evaluation reports and assessment criteria. Defendants claimed fair use (among many other defenses and answers). For the first factor, defendants' primary argument was that their evaluation reports and acceptance criteria "served a significant public benefit by demonstrating the compliance of a product, method or system with the applicable building code to ensure public safety," but ultimately the Magistrate Judge recommended the court hold that the commercial, for-profit nature of the use outweighed any benefit or any transformativeness. For the second factor, the Magistrate Judge acknoweldged the primarily factual nature of the works in question, but focused on the fact that defendants were competing with plaintiffs. The third factor weighed against fair use due to the volume of copying and sharing. For the fourth factor, defendants failed because they deprived plaintiffs of licensing revenue. | Plaintiff's motion for summary judgment | Not fair use | D.C. | D.D.C. | Literary works | Miscellaneous literary work |
| Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., 597 F. Supp. 3d 213 (D.D.C. 2022). | 03/31/22 | Private organizations developed technical standards that were subsequently incorporated by reference into federal law. These organizations brought actions for copyright infringement against a nonprofit group that distributed standards on the internet. On the first factor, the court said that because defendant's standards served as a market substitute for plaintiff's standards, the more pertinent question is whether defendant would profit from these reproductions, and because defendant did not stand to profit, this furthered the purposes of the fair use defense. As for the second factor, the court noted that the standards were closer to the outer edge of copyright's protective purposes. On the third factor, the court considered the defendant's copying on a standard-by-standard basis for all 217 standards. The fourth factor, the court found that "the evidence is such that a reasonable jury could not return a verdict for the plaintiffs that the defendant's actions have caused, or likely will cause, market harm with regards to a specific standards that issue." In a 145-page appendix, the court concluded that defendant could not copy, reproduce, or distribute 32 standards that differed in substantive ways from those incorporated by reference into law, but that defendant could copy, reproduce, and distribute 184 standards in their entirety, and only specified portions of 1 standard. | Plaintiff's motion for summary judgment; Cross-motion for summary judgment | Fair use | D.C. | D.D.C. | Literary works | Legal rules and standards |
| Automated Mgmt. Sys., Inc. v. Rappaport Hertz Cherson Rosenthal, P.C., No. 1:16-CV-04762-LTS-KNF, 2022 WL 991755, (S.D.N.Y. 2022). | 03/31/22 | Plaintiff makes and licenses software products, including a program called Landlord Tenant Legal System (LTLS) which was licensed to defendants, a law firm. Defendants created a new software platform to replace the LTLS program. Plaintiff asserted copyright infringement and other claims. Defendants moved for summary judgment on fair use, among other grounds. The court found that the plaintiff proffered sufficient evidence from which a reasonable jury could conclude that the defendants committed copying beyond that deemed permissible in previous cases in which "intermediate copying" was permitted for the purpose of making compatible games. However, there was a genuine factual dispute as to whether defendants had to copy plaintiff's software in order to retrieve defendants' own client data. The court denied defendants' motion for summary judgment based on fair use doctrine. [Ed. note: Prior to trial, on plaintiff's motion in limine to preclude evidence in support of a defendant's fair use defense, the court clarified that denial of summary judgement does not preclude assertion of the fair use defense at trial, and confirmed that the court "did not render a final judgment regarding Plaintiff's copyright infringement claims or [certain defendants'] affirmative defenses." Automated Mgmt. Sys., Inc. v. Rappaport Hertz Cherson Rosenthal, P.C., No. 16-CV-04762-LTS-JW, 2024 WL 4987018 (S.D.N.Y. Dec. 4, 2024).] | Defendant's motion for summary judgment | Fair use not determined | 2d | S.D.N.Y. | Literary works | Software |
| Yang v. Mic Network Inc., No. 20-4097-CV, 2022 WL 906513 (2d Cir. 2022) | 03/29/22 | The plaintiff sued the defendant for copyright infringement. The copyrighted work at issue was a photograph that was taken by the plaintiff and licensed to the New York Post for its article "Why I Won't Date Hot Women Anymore." Defendant used a screenshot of the Post article (including the headline and a portion of the licensed photograph taken by the plaintiff) as the banner image of defendant's article "Twitter is Skewering the 'New York Post' for a Piece on Why a Man 'Won't Date Hot Women'." The district court granted defendant's motion to dismiss. On appeal, under the first factor of the fair use analysis, the court of appeals found that the secondary work was transformative when compared to the original work. The court found that the defendant's banner image was used to identify the source of its criticism and as part of the criticism of the Post article. The court cited a previous holding that "use of quotations from [a course manual to support [a] critical analys[i]s of [related] seminars is transformative." The court also noted that the secondary work does not need to satirize the original work to be considered transformative under the first factor of the fair use analysis. The court concluded that the district court was correct in finding that the first factor of fair use weighed in favor of finding fair use. Under the fourth factor of the fair use analysis, the court of appeals agreed with the district court that "it was implausible that [the] market [for licensing Yang's photograph] would be supplanted by [Mic's] use." Thus, the audiences for the two works are very different. Therefore, the court stated that the fourth factor also tipped in favor of the defendant's fair use. The court quickly concluded that the second factor had little weight because the secondary work was used in a transformative manner. The third factor also tipped in favor of fair use becuase the defendant only used what was "reasonable" to criticize the Post's article. Affirming Yang v. Mic Network, Inc., 405 F. Supp. 3d 537 (S.D.N.Y. 2019) | Motion to dismiss | Fair use | 2d | 2d Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Viacom Intl. Inc. v. Pixi Universal, LLC, No. CV H-21-2612, 2022 WL 909865 (S.D. Tex. Mar. 25, 2022). | 03/25/22 | A Houston restaurateur created a pop-up eatery called the "Rusty Krab" which intentionally copied significant, detailed elements of the SpongeBob SquarePants television program. ViacomCBS sued for copyright infringement. The "Rusty Krab" owners could not avail themselves of the fair use defense. The court found that defendants' use of Viacom's copyrighted works was wholly commercial in nature and the "new work" (i.e. The Rusty Krab) had no critical bearing on the substance of the original composition and was merely used to get attention and avoid the "drudgery in working up something fresh." The court found no credible evidence that established the parodic nature of the Rusty Krab. The parodic nature could not be reasonably perceived as commenting on Viacom's Works or criticizing them in any respect or degree. The court also found that The Rusty Krab was not transformative because defendants did not add "something new" or "alter the first with new expression, meaning or message." To the extent thatdefendants transmitted the works in question to a different medium, the court found that the purpose was still the same: light-hearted entertainment. As to the second factor, the court determined Viacom's copyrighted works to be published, imaginative, fictional works, which typically militates against fair use. As to the third factor, the court found that defendants used the heart of the work. Defendants used the copyrighted works' unique universe and characters in creating and advertising The Rusty Krab. Lastly, the court found that the Rusty Krab impacted potential derivative markets that Viacom would develop or license others to develop. | Preliminary injunction | Not fair use | 5th | S.D. Tex. | Motion pictures and other audiovisual works | Motion picture |
| McGucken v. Newsweek LLC, No. 19 CIV. 9617 (KPF), 2022 WL 836786 (S.D.N.Y. Mar. 21, 2022). | 03/21/22 | Defendant Newsweek embedded plaintiff's Instagram photo in a published article, and plaintiff sued for copyright infringement. After stating that the first fair use factor includes three sub-factors: (i) whether the use was transformative, (ii) whether it was commercial in nature, and (iii) whether the defendant acted in bad faith, the court found the use was not transformative as plaintiff posted the photograph as an illustration of a phenomenon he observed while defendant similarly used the photograph primarily as an illustrative aid depicting the subject of the article. However, the court found that all four factors are factual-intensive questions. As such, the court found that making decisions about fair use on summary judgment was inappropriate. This is the second fair use opinion in this case. See McGucken v. Newsweek LLC, 2020 U.S. Dist. LEXIS 96126 (S.D.N.Y. June 1, 2020). | Cross-motion for summary judgment | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Assessment Techs. Inst., LLC v. Parkes, 588 F. Supp. 3d 1178 (D. Kan. 2022). | 03/21/22 | Defendant created nursing tutorial videos and study cards based on various sources of learning materials, including defendant's nursing-education study material. Plaintiff sued for copyright infringement. The court did not conduct an extensive fair use analysis as it found that defendant offered sufficient evidence that raises a genuine issue of material fact, and thus an extensive analysis of fair use factors was unnecessary. The court mentioned that though defendant's sale of study cards is commercial in nature, the videos are available to the public free of charge. In addition, the fact that defendant did not reproduce the review modules in their entirety weighs in favor of defendant. However, the court determined that a genuine issue of mateiral fact existed and denied defendant's motion for summary judgment as to fair use. | Defendant's motion for summary judgment | Fair use not determined | 10th | D. Kan. | Motion pictures and other audiovisual works; Literary works | Motion picture; Educational materials |
| XpandOrtho, Inc. v. Zimmer Biomet Holdings, Inc., No. 321CV00105BENKSC, 2022 WL 801743 (S.D. Cal. Mar. 15, 2022). | 03/15/22 | Plaintiff brought action against defendant for copyright infringement of animation images in a merger dispute gone wrong. Defendant claimed fair use as to its use of three low-resolution figures from the XO1 Animation in a provisional patent application, claiming that the use was to illustrate the functionality of the medical device which plaintiff publicly disclosed and that its use of the animation was transformative as its main purpose was the advancement of science. The court found that because of the numerous factual issues in dispute, it would be improper to resolve the question of defendants' fair use on a motion to dismiss, and the issue was better suited for summary judgment or trial. The motion to dismiss was denied. Ed note: Though there were myriad factual disputes here, courts have previously held that use of copyrighted works in patent applications is fair use. | Motion to dismiss | Fair use not determined | 9th | S.D. Cal. | Motion pictures and other audiovisual works | Animation |
| Bus. Casual Holdings, LLC v. TV-Novosti, No. 21-CV-2007 (JGK), 2022 WL 784049 (S.D.N.Y. Mar. 14, 2022). | 03/14/22 | Plaintiff brought action against defendant for using its copyrighted video. Plaintiff posted documentaries to YouTube and the defendant, a Russian non profit that operates the RT Arabic YouTube channel, used portions of plaintiff's videos on their own YouTube channel. Plaintiff filed three DCMA take down requests with YouTube and defendant filed a DMCA counternotifications. After plaintiff sued, defendant moved to dismiss on fair use grounds. The court found that defendant's videos took portions of the plaintiff's videos, re-arranged them, and added new commentary to them but did not make any meaningful changes to the visual clips themselves. Additionally the court found that plaintiff's allegations gave rise to a plausible inference that defendant was motivated by both pecuniary and political gain. The court found that the first three factors of fair use weighed against a finding of fair use, and the fourth would need more information to determine. Defendant's motion to dismiss the copyright infringementclaims was denied. | Motion to dismiss | Not fair use | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Monsarrat v. Newman, 28 F.4th 314 (1st Cir. 2022). ' | 03/10/22 | Plaintiff, a member of an online community, brought a copyright infringement and defamation action against defendant, who was the online community's moderator. The district court dismissed the complaint, and plaintiff appealed. Defendant raised the affirmative defense of fair use. The appellate court examined each of the fair use factors. For factor 1, the court considered the sub-factors of (i) transformativeness, (ii) commercial nature of the post, and (iii) intent of the defendant. The court found that the post was at least minimally transformative, non-commerical in nature, and not made in bad faith. Factor 1 was found to favor the defendant. Factor 2 was found in favor of the defendant despite plaintiff's post being previously published because the court found the post more factual in nature than creative. Factor 3 was found to favor neither side despite the court acknowledging that defendant copied the entirety of plaintiff's post. Factor 4 was found to favor fair use because there was no substitution in potential market value or the inherent value of the copyrighted work. The First Dircuit affirmed the district court ruling granting defendant's motion to dismiss since the reposting of plaintiff's material constituted fair use. Affirming Monsarrat v. Newman, No. CV 20-10810-RGS, 2021 WL 217362, at *2 (D. Mass. Jan. 21, 2021) | Motion to dismiss | Fair use | 1st | 1st Cir. | Literary works | Online literary work |
| Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022). | 02/25/22 | Yet another case involving serial plaintiff Keith Bell, who has repeatedly sued school districts for their use of short excerpts of a book he wrote entitled "Winning Isn't Normal" (in this case, based on posts for a high school's softball team and color guard web page). On Defendant school district Eagle Mountain's motion to dismiss for fair use, the court held the first factor weighed in favor of defendant: defendant's use of the copyright was not transformative, and when the use is not transformative, other factors, like whether the use was of a commercial nature, loom larger and require a stronger showing. As a result, even though the defendant's use was not transformative, the first factor weighed in favor of defendant because defendant's use was in good faith and did not produce a commercial benefit. The court held the "nature of the work" factor weighed in favor of plaintiff because the copyrighted material was used for its creative expressive content. However, the court held this was the least important factor. The court held the third factor was neutral because the school only posted a small passage of the copyrighted material, which was already available to the public. Finally, the court held that there was no adverse effect on the market for plaintiff's book, which was "undoubtedly the single most important element of fair use." Quoting Sony v. Universal City Studios, the court noted that If an infringing use "enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced does not have its ordinary effect of militating against fair use." Affirming Bell v. Eagle Mountain Saginaw Independent School District,529 F.Supp.3d 605 (N.D. Tex. 2021). (Ed note: The district court opinion, by Judge Pittman, is notable for its colorful writing using the language of boxing—and for calling out the plaintiff's objectionable business model. It starts out delightfully: "THE TITLE CARD: Today's bout is only one of the latest in a long string of fights involving Dr. Keith Bell. In one corner stands the underdog, Eagle Mountain—a scrappy, counter-punching independent school district. In the other stands Bell, an infamous slugger known in federal courts around the United States for throwing heavy-handed hooks at non-profits and taxpayer funded school districts in the hopes that they throw in the towel and let him take the purse. In refereeing today's match, the Court finds itself in the frustratingly familiar position of penalizing rabbit-punches and kidney shots between parties who, by all reasonable accounts, should not be in the ring at all.") | Motion to dismiss | Fair use | 5th | 5th Cir. | Literary works | Book |
| Moonbug Ent. Ltd. v. Babybus (Fujian) Network Tech. Co., Ltd., No. 21-cv-06536-EMC, 2022 WL 580788 (N.D. Cal., Feb. 25, 2022). | 02/25/22 | Plaintiff Moonbug owns the CoComelon animation and has copyright of the characters baby JJ, his parents, brother TomTom, and sister YoYo, as well as hundreds of original videos, songs, and images featuring the characters. Plaintiff sued defendant Babybus for copying videos, plots, themes, dialogues, moods, and more in its Super JoJo brand. The court found no fair use under any of the factors. Under the first factor, the court found that Babybus's works were for commercial use despite their educational nature. Babybus made no argument under the second factor on the nature of the copyrighted works. For factor three, Babybus's argument that the similarities between the works are ideas and expressions that cannot be protected by copyright failed because the court held this is not a basis for an affirmative defense of fair use, which presumes that copying has actually occurred. Lastly, Babybus's assertion that Moonbug can't show that the value of their workw as diminished had no factual underpinning, and thus, the court held this argument also failed. Defendant also asserted a DMCA § 512(f) counterclaim, which was dismissed because the defendant had not alleged any material misrepresentations by plaintiff. | Other; Motion to dismiss | Not fair use | 9th | N.D. Cal. | Motion pictures and other audiovisual works | Motion picture; Character |
| In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), 581 F. Supp. 3d 509 (S.D.N.Y. 2022) | 01/18/22 | Anonymous Movant made stop-frame Lego animations criticizing Watch Tower's videos about Jehovah's Witnesses practices. Movant filed motion to quash Watch Tower's subpoena requesting discovery of Movant's identity for purposes of copyright infringment action. Court granted motion to quash, since finding of fair use defeated alleged copyright infringement claim. The purpose of criticizing Jehovah's Witnesses is transformative and in direct opposition to the original purposes of supporting Jehovah's Witnesses. Criticism is considered one of the most appropriate purposes indicating fair use. Excerpts of the original videos used were relatively small proportion compared to the originals, and were deemed not excessive because the uses were all relevant to criticism and commentary. There was no effect on the market because the target audiences were entirely different. | Discovery Request | Fair use | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Sellas Life Scis. Grp., Inc. v. Doe, No. 21-cv-6014 (AJN), 2022 U.S. Dist. LEXIS 7733 (S.D.N.Y. Jan. 13, 2022) | 01/13/22 | Anonymous Defendant made online forum posts on Yahoo! Finance posing as Plaintiff's CEO admitting to various addictions and illegal acts. Court granted Plaintiff's motion to expedite discovery and request to serve subpoena on Yahoo! Finance to identify Defendant, because of adequate initial showing of copyright infringement claim. The court held that plaintiff had made an adequate showing of its copyright infringement claim such that the Court would not resolve the fair use issue without first providing Doe an opportunity to file briefing in response. | Discovery Request | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| In re DMCA § 512(h) Subpoena to Twitter, Inc., No. 20-mc-80214-DMR, 2021 U.S. Dist. LEXIS 247680 (N.D. Cal. Dec. 29, 2021) | 12/29/21 | Anonymous Twitter user posted six tweets in reference to Brian Sheth which included six photographs each depicting a woman or a portion of a woman's body. The copyright to the photographs was owned by Plaintiff. Plaintiff requested that Twitter remove the copyrighted photographs and also requested an issuance of subpoena compelling Twitter to produce identifying information regarding the anonymous user. Twitter removed the photographs but rejected the subpoena on the grounds that it seeks information revealing the identity of an anonymous online speaker. Court holds that Twitter must comply because the use of the photographs does not constitute fair use. Because there is no evidence regarding the purpose or meaning of the tweets, the use of the photographs was not transformative. Furthermore, the photographs were used in their completely original form. Twitter's motion to quash was denied. | Discovery Request | Not fair use | 9th | N.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Incredible Features v. Backchina, No. CV 20-943-DMG (RAOx), 2021 U.S. Dist. LEXIS 250121 (C.D. Cal. Dec. 16, 2021) | 12/16/21 | Plaintiffs are two photographers and their company that licenses and distributes their photos. Defendant website reposted Plaintiff's copyrighted images to use for news articles loosely based on the images. The court held that the defendant's conduct was not fair use. The defendants did not produce evidence that their use of the photos was educational and did not provide text for any of the articles to which the headlines led. Their assertion that their use was news coverage was not sufficient to demonstrate fair use. The commercial nature of the website and the non-transformative use of the photos (as illustrative aids, similar to the use intended by photographers) also weighed against fair use. As to the second factor, the photos were published but also creative. The court did not find that this factor indicated fair use. The third factor did not weigh in favor of fair use either. The images were wholly reproduced, but the court acknowledged that with photographs this factor is far from dispositive. The last factor weighed heavily against fair use. Plaintiffs' business is licensing their photographs, and defendant has denied them this opportunity. (Ed. note: A Higbee case.) | Plaintiff's motion for summary judgment | Not fair use | 9th | C.D. CAl. | Pictorial, graphic, and sculptural works | Photograph |
| Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc., No. SAG-18-03403, 2021 U.S. Dist. LEXIS 222009 (D. Md. Nov. 17, 2021) | 11/17/21 | Plaintiff was first to successfully breed a Lykoi cat, which is a new breed of cat with werewolf-like appearances. As the plaintiff's began to sell their Lykoi cats, they began to advertise and photograph them to advertise and promote the breed. In 2015 a news network contacted the plaintiff to use images, which were given permission to be used, in addition to a statement giving credit to the plaintiff. However, the plaintiff claimed that proper credits were not given. The court held that the first factor favored Defendants, because they "used the photographs to accompany a newsworthy story documenting the creation of a new, visually-distinctive breed of cats," and "Because the articles focused, primarily, on the cats' distinctive look, the photographs were a critical piece of the story." The court further concluded that issues of fact existed with respect to the market harm factor, and that therefore that summary judgment was not appropriate at that stage. | Defendant's motion for summary judgment | Fair use not determined | 4th | D. Md. | Pictorial, graphic, and sculptural works | Photograph |
| Stross v. Nextluxurydotcom LLC, No. 2:21-cv-01181-JVS (AFMx), 2021 U.S. Dist. LEXIS 250462 (C.D. Cal. Nov 17, 2021). | 11/17/21 | Plaintiff alleged Defendant infringed on copyright in three photographs by posting the photographs on its website. Defendant claimed copyright over the contents. The court entered a default judgment for Plaintiff because Defendant did not file timely response and did not appose motion for default judgment. Defendant made a fair use argument as part of his larger argument for a meritorious defense in support of excusable neglect for failure to respond, claiming the photographs were used for criticism, comment, or research. The Court disagreed on all four factors: (1) it was for commercial purposes; (2) Photographs were creative, not fact-based works. Cited Perfect 10 v. Amazon for this conclusion about photographs; (3) they were large-scale, high-resolution photos posted in totality, not altered at all, therefore not reasonable for the purpose of the copying; and (4) Defendant's unlicensed use deprived Plaintiff of core licensing revenue; also provided the public with free substitutes for the originals, threatening future licensing revenue. | Motion to set aside default | Not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| McGucken v. Content IQ LLC, No. 20 CIV. 8114 (AKH), 2021 WL 5357473 (S.D.N.Y. Nov. 16, 2021). | 11/16/21 | Defendant allegedly published Plaintiff's photographs in an online article without permission. Plaintiff filed motion for leave to file first amended complaint to correct registration numbers of the photographs. Despite Plaintiff's lack of good cause to grant leave, the motion to amend complaint was granted because the prejudice to Defendant and delay caused would be insubstantial. The court ruled that fair use, as an affirmative defense, was not relevant for determination of the sufficiency of a complaint or proposed amendment. (Ed. note: A Doniger/Burroughs case.) | Other | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Pickersgill v. Neely, No. 3:21-CV-00773-X, 2021 WL 5163197 (N.D. Tex. Nov. 5, 2021). | 11/05/21 | Defendant allegedly infringed the copyright of Plaintiff's photos. Plaintiff filed motion to strike various affirmative defenses raised by Defendant, including fair use. Court denied Plaintiff's motion to strike the fair use defense, as Defendant had pled facts that provide sufficient notice of its relevance. | Other | Fair use not determined | 5th | N.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Alper Auto., Inc. v. Day to Day Imps., Inc., No. 18-81753-CIV, 2021 U.S. Dist. LEXIS 212715 (S.D. Fla. Nov. 2, 2021). | 11/03/21 | Mr. Walters designed a set of replacement stickers for the dashboard climate controls for GM cars. The defendant began selling a similar set of climate control stickers without the background artwork in 2016. Walters accused defendant of copyright infringement and the two parties reached an agreement "“ the defendant paid to license the copyrighted work. In 2017, Defendant learned that Plaintiff was selling climate control stickers similar to its own on Amazon. Defendant then filed a series of DMCA Takedown Notices with Amazon, which resulted in the Amazon listing for Plaintiff's sticker sheet being taken down for periods of time. Plaintiff brought this lawsuit alleging that Defendant knowingly misrepresented to Amazon that Plaintiff was infringing on Defendant's copyright, resulting in injury to Plaintiff. The DMCA relieves internet service providers of liability for storing users' content if the provider "expeditiously" removes content after receiving a takedown notice from a copyright holder that it is infringing. However, any person who knowingly misrepresents that material or activity is infringing in a DMCA Takedown Notice is subject to civil liability. That being said, no misrepresentation occurs if the party submitting the DMCA Takedown Notice had a reasonable, good-faith subjective belief that infringement was occurring. This means that, when submitting a takedown notice a copyright holder must consider whether the potentially infringing material is fair use. In this case, the defendant properly considered fair use in submitting its four DMCA takedown notices; the defendant considered (1) the purpose and character of plaintiff's use, (2) whether the alleged infringement caused market harm to the defendant, and (3) the amount and substantiality of the infringement. Although the defendant did not consider the fourth fair use factor, the court considered its analysis of three of the four fair use factors sufficient to meet its burden in engaging in a fair use analysis prior to submitting a takedown notice. | Bench trial | Fair use not determined | 11th | S.D. Fla. | Pictorial, graphic, and sculptural works | Art |
| CDK Glob. LLC v. Brnovich, 16 F.4th 1266 (9th Cir. 2021). | 10/25/21 | Technology companies that licensed dealer management systems (DMS) to car dealers sued the AZ Attorney General for declaratory and injunctive relief. The suit challenging the validity of the Arizona Dealer Law, which prevented database providers from limiting access to car dealer data by dealer-authorized third parties and required providers to create standardized framework to facilitate such access. CDK argued that the Arizona Dealer Law was preempted by the Copyright Act because it grants dealers and their authorized integrators the right to access their systems and create unlicensed copies of (1) its DMS, (2) its APIs, and (3) its data compilations. The Ninth Circuit affirmed the district court’s denial of a motion for preliminary injunction . The court held it is not clear a copy would need to be made, and in any event, causing a DMS provider (such as CDK) to copy its software on its own server in these circumstances would constitute fair use. | Preliminary injunction | Fair use not determined | 9th | 9th Cir. | Literary works | Software |
| Baugher v. GoDaddy.com LLC, No. MC-19-00034-PHX-JJT, 2021 U.S. Dist. LEXIS 204449 (D. Ariz. Oct. 22, 2021). | 10/22/21 | Defendant bloggers reposted Plaintiff's images and unpublished manuscript, ostensibly for the purpose of criticism. Plaintiff successfully had the posts taken down by filing a DMCA takedown notice. Plaintiff then filed an application to subpoena the identities of the Does, who moved to quash. The court held against fair use. The court finds the first factor in favor of plaintiff because the blog posts reproduced long portions of Plaintiff's manuscript without commentary or criticism. The court stresses that to invite criticism by readers is not transformative. The second factor also weighed against fair use as the work was both highly creative and unpublished. The third factor weighed against defendants because they reproduced the materials in their entirety. Defendants only offered speculation about market harm, and so also failed to provide convincing evidence as to the fourth factor. The motion to quash the subpoena was denied. | Discovery Request | Not fair use | 9th | D. Ariz. | Pictorial, graphic, and sculptural works | Photograph |
| Leveille v. Upchurch, No. 3:19-cv-908-BJD-MCR, 2021 U.S. Dist. LEXIS 248486 (M.D. Fla. Oct. 15, 2021). | 10/15/21 | Plaintiff gave defendant (country music performer Upchurch) two pieces of his artwork, but defendant never paid for them. It is disputed whether the artwork was commissioned or gifted to the defendant by the plaintiff. After failing to obtain payment from the defendant, the defendant filmed himself shooting the two pieces of artwork with a rifle and posted the video on Instagram. The two pieces of artwork were later put up for auction and the proceeds would benefit a children's foundation. Plaintiff filed suit for copyright infringement. Defendant then filed a motion for summary judgment, arguing fair use among other defenses. Each party had its own arguments about whether the video was transformative, so the court held that genuine issues of material facts precluded it from making a determination on factor one. Defendant argued that plaintiff's original works were based off of images found on Google Images and should favor a finding of fair use but plaintiff argued that the work was created independently and was highly creative. The court again found that genuine issues of material facts precluded it from making a determination on factor two. The defendant argued that including the works in their entirety was necessary to comment and critique on the dispute between the parties. The plaintiff argued that including the works in their entirety was not necessary because the dispute between the two parties did not involve the substantive aspects of the artwork. Each party had a different meaning attached to the posting of the video and the court found that genuine issues of material fact precluded a finding on factor three. The parties had different evidence as to the value of the works before and after the shooting and the court thus found that a genuine issue of material facts exists as to factor four. Motion for summary judgment denied. (Ed. note: this case win the 2021 award for Most Entertaining Factual Background. We were disappointed that the court did not include a link to the video of the defendant shooting up plaintiff's painting, but apparently the original Instagram post has been removed.) | Defendant's motion for summary judgment | Fair use not determined | 11th | M.D. Fla. | Pictorial, graphic, and sculptural works | Art |
| O'Neil v. Ratajkowski, 563 F. Supp. 3d 112 (S.D.N.Y. 2021). | 09/28/21 | Plaintiff is a celebrity photographer; defendant is a professional model and actress who owns her own clothing line, and she runs an instagram page where she sometimes shares sponsored posts both to her main feed and her story feed. Plaintiff photographed Defendant in public and posted the photo on Splash News, Plaintiff's agency, where users can license photos. Plaintiff made little to no money on this particular photograph. Defendant reposted the photo, which depicted her covering her face with a bouquet of flowers, seemingly to hide from photographers, on her instagram story with the words "mood forever." Plaintiff brought suit against Defendant for copyright infringement. Defendant argued that by placing the words "mood forever" the photograph was transformative because it "ma[de] commentary and criticism of [Ratajkowski's] perspective of abusive, aggressive, and harassing practice of paparazzi constantly following her, even when buying flowers for a friend." The court denied Defendant's motion for summary judgment and held there is a genuine issue as to whether the use was transformative. The court considered the issue of whether this was a commercial use, considering Defendant had a link to her online storefront in her instagram bio and has made more than $100,000 from instagram story sponsorships over the past three years. The court held that although the use was "slightly commercial," it was incidental to the commercial activity of the instagram page and should be given little weight. The court also discussed the amount and substantiality of Defendant's use. (Ed. note: It's interesting that here the photo was posted on an Instagram story, which was only live for 24 hours and then automatically taken down. That type of fleeting use wouldn't qualify as de minimis, but perhaps it could be relevant in the "amount and substantiality" or "market harm" factors (as well as damages)). A Richard Liebowitz case. The court awarded attorney's fees, costs, and sanctions to another defendant because there was no evidence of its connection to the infringement and Plaintiff "admittedly had 'no idea' whether Emrata had anything to do with the subject matter of the complaint.") | Defendant's motion for summary judgment | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Easter Unlimited, Inc. v. Rozier, No. 18-CV-06637 (KAM), 2021 U.S. Dist. LEXIS 184636 (E.D.N.Y. Sep. 27, 2021). | 09/27/21 | Plaintiff owned the copyright for the "Ghost Face Mask" that was licensed for the Scream movies. Defendant is a professional basketball player, Terry Rozier, who acquired the nickname "Scary Terry" for his lethal scoring ability. Embracing this nickname, Defendant created a line of tshirts and hoodies that depicted the Ghost Face Mask on his body. Plaintiff filed claims for direct, contributory, and indirect copyright infringement of Defendant's use of the Ghost Face Mask. The court held that Defendant's use of the Ghost Face Mask to depict his NBA persona constituted fair use and granted the cross-motion for summary judgment. The court determined the first factor weighed in favor of fair use because Defendant used the Ghost Face Mask to create a humorous embodiment of himself being a "killer scorer" and thus, transformed the Ghost Face Mask with a new meaning. Moreover, Defendant did not merely replicate the mask, but created a cartoon rendition on a child-like cartoon version of Defendant. The court further held that the use was partially a parody and a satirical work and the commercial use of the mask on merchandise was outweighed by its transformative use. On the seocnd factor, the court held it weighed against fair use because Plaintiff's Ghost Face Mask was both creative and published. On the third factor, the court found that it weighed neither for nor against fair use because use of the main features of the Ghost Face Mask was necessary for its asserted purpose. On the fourth factor, the court held this weighed in favor of fair use because Defendant has identified a distinct market for his Scary Terry merchandise"”NBA fans"”that would not usurp the primary market for the Ghost Face Mask of holidays and parties. In sum, the court determined that Defendant's use of the Ghost Face Mask was defensible under the fair use doctrine. Because the determination of Defendat's fair use posed questions of law and not fact, the court granted summary judgment for dismissing all claims of copyright infringement. | Defendant's motion for summary judgment | Fair use | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Sculpture |
| Stross v. Centerra Homes of Tex., No. 1:17-CV-676-RP, 2021 U.S. Dist. LEXIS 219239 (W.D. Tex. Sep. 27, 2021). | 09/27/21 | Plaintiff photographer claimed that defendant real estate company used his photographs without authorization. The defendants sought summary judgment on fair use and other affirmative defenses. The court denied summary judgment as to fair use as neither party had briefed sufficient facts for the court to consider the defense. | Plaintiff's motion for summary judgment | Fair use not determined | 5th | W.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Hunley v. BuzzFeed, Inc., No. 1:20-CV-08844-ALC, 2021 U.S. Dist. LEXIS 189420 (S.D.N.Y. Sep. 30, 2021). | 09/20/21 | Plaintiffs took frontline photographs of protests in major cities, registered the photographs with the US Copyright Office, and posted them on Instagram. They allege that Defendant infringed on their copyright of photographs by displaying in an online post on its website at least one of each of plaintiffs' protest photographs. In its motion to dismiss, Defendant addresses only one of the four factors of fair use. The Court finds that the statutory factors cannot be treated in isolation, and therefore Defendant cannot sustain a fair use defense. On the one factor defendant does address, the transformative nature of the work, the Court finds that Defendant's work is not transformative because it merely uses photographs to identify the photojournalists and makes no modification to the copyrighted material after embedding the photos. Furthermore, the Court also states that the work does not provide any altered expression or meaning to the allegedly infringed work beyond that for which the work was originally created by the copyright holders. | Motion to dismiss | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Frye v. Lagerstrom, No. 20-3134, 2021 WL 4022695 (2d Cir. Sept. 3, 2021). | 09/03/21 | On Appeal from a grant of summary judgment for Plaintiff in an action for copyright infringement and breach of contract. The court affirmed the lower court's decision on summary judgment. Both parties conceded Plaintiff owned the copyright and Defendant used Plaintiff's work. Defendant had used of footage from a short film called "Homeless: A Love Story", which Plaintiff wrote and directed and Lagerstrom worked on pursuant to a "Crew Agreement" signed by Frye and another party. The Defendant argued fair use but provided no evidence to support the claim, and in any event used almost half of the original work. The Court of Appeals held that the District Court decided the motion correctly as Defendant submitted no evidence to contradict Plaintiff's prima facia case. | Plaintiff's motion for summary judgment | Fair use not determined | 2d | 2d Cir. | Motion pictures and other audiovisual works | Motion picture |
| Divine Dharma Meditation International Inc. v. Institute of Latent Energy Studies, No. 19-55264, 2021 WL 3721438 (9th Cir. Aug. 23, 2021). | 08/23/21 | Divine Dharma filed a copyright infringement suit against Latent Energy Studies for using a painting of Dasira Narada, a historical figure who developed certain meditation techniques. Both parties are non-profit meditation centers. The district court denied Divine's Rule 50(b) motion for judgment as a matter of law. Divine appealed, arguing that the court erred in its decsion by not making an "independent analysis of the legal aspects of the fair use determination" and that if the correct analysis had been conducted, the use of the painting by defendant would not have been fair use. On appeal, the Court addressed several factors. First, the court found that the defendent did not tranform the work's expression, which meant that it was neutral and did not weigh in favor or against fair use. Second, the court looked at the nature of the work and found that it was informational, rather than creative, thus weighing against fair use. Third, the court analyzed the "amount and substantiality of the portion of the copyrighted work used by the infringing work" and found that there was not enough support to suggest that only what was necessary was used, thus leaning against fair use. Fourth, the court assessed the "potential market for or value of the copyrighted work." 17 U.S.C. § 107(4), and found that this factor weighed in favor of fair use. Reasoning that the fourth factor is the "single most important element of fair use," the court found that the factors weigh in favor of finding fair use, and thus, the district court did not err. | Joint motion for judgment | Fair use | 9th | 9th Cir. | Pictorial, graphic, and sculptural works | Art |
| Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971 F.3d 1042 (9th Cir. 2020). | 08/16/21 | Oracle sued HP for copyright infringement, alleging that HP, either directly or through Terix, provided patches of a software owned by Oracle to customers who had not paid the fees for those patches to Oracle. Both Oracle and HP filed competing motions for summary judgment on the copyright infringement claims. HP made is a fair use defense (inter alia). The Court rejected HP's argument that its conduct was transformative, finding that HP did not add anything to the software, and concluded that HP had failed to show any evidence to support this theory of fair use. Oracle's MSJ as to HP's fair use defense was granted. | Defendant's motion for summary judgment; Plaintiff's motion for summary judgment | Not fair use | 9th | N.D. Cal. | Literary works | Software |
| Werner v. Red Blue Media Inc., No. 2:20-cv-01024-SVW-AFM, 2021 WL 3560588 (C.D. Cal. Aug. 9, 2021). | 08/09/21 | Plaintiff sued over use of multiple photos by defendant who operated two sites that generally posted memes. The court (Judge S. Wilson) granted plaintiff's motion for summary judgment, reasoning that transformativeness was minimal given that plaintiff's photographs "depict people and animals doing unusual and unexpected things. Many of the captions, and the selection of photographs for particular lists, simply underscores that fact. While some of the articles include a longer narrative, the central theme of those articles is the same "“ to draw the reader into some unusual or unexpected phenomenon or practice." Nor did the article comment on the photographs themselves. NB: A Higbee case. | Plaintiff's motion for summary judgment | Not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Nat'l Fire Prot. Ass'n v. Upcodes, Inc., No. CV 21-5262 DSF (E), 2021 U.S. Dist. LEXIS 206309 (C.D. Cal. Aug. 9, 2021). | 08/09/21 | Defendant publicly publishes Plaintiff's model legal standards for installation of electrical equipment to be incorporated by federal, state, and local government. Court denied Plaintiff's motion for preliminary injunction because the currently known facts suggest Defendant made fair use. Creating public access for adopted codes was a transformative purpose compared to development of model codes for government adoption. No transformative purpose found for codes that were not yet adopted. However, the codes were primarily factual and a majority of the codes were adopted. Plaintiff also failed to establish evidence of market impact beyond vaguely speculative claims. (Ed. note: a rare case in which Factor Two, nature of the copyrighted work, played an important role.) | Preliminary injunction | Fair use | 9th | C.D. Cal. | Literary works | Legal rules and standards |
| National Academy of Television Arts and Sciences, Inc. v. Multimedia System Design, Inc., 551 F. Supp. 3d 408 (S.D.N.Y. 2021). | 07/30/21 | The two named Television Academies filed suit against Defendant media company, which takes part in conspiracy theories, after Defendant posted a video of the "Crony Awards" featuring an Emmy Statue holding a coronavirus graphic. "honoring countries that downplayed the seriousness of the COVID-19 virus." Defendant asserted counterclaims for declaratory relief, violation of New York's anti-SLAPP law, and abuse of the Digital Millennium Copyright Act ("DMCA"). Court denied defendant's motion. Court reasoned that Defendant's use of the statute was not fair use since it was not transformative ("'to promote a serious discussion' of the COVID-19 pandemic is insufficient to establish transformativeness"), could not be considered a parody, was used for commercial purposes, is based on a creative work, and that the Plaintiffs adequately alleged that they suffered harm as a result of being associated with problematic beliefs regarding the pandemic. | Motion to dismiss | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Sculpture |
| Nicklen v. Sinclair Broadcast Group, Inc., 551 F. Supp. 3d 188 (S.D.N.Y. 2021). | 07/30/21 | Defendants operate for-profit news stations and websites and embedded an Instagram video of an emaciated polar bear in an online article. The court ruled that this violated the display right. Defendants didn't pay the licensing fee that most news stations pay when using images and videos of this sort. The Court reasoned that by looking at customary practice, the Defendants' use was commercial. The Court denied Defendants' motion to dismiss, because Plaintiff stated a prima facie case for copyright infringement and because the Defendants couldn't meet their difficult burden of proving a fair use defense on the sheer basis of the pleadings. (Ed. note: this case is notable for a reason other than fair use: Judge Rakoff ruled that embedding an Instagram post violated the display right, even though defendants didn't actually host the image on their servers. This is a departure from the Ninth Circuit's "server rule" from Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 (9th Cir. 2007).) | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Fioranelli v. CBS Broadcasting Inc., 551 F.Supp.3d 199 (S.D.N.Y. 2021). | 07/28/21 | Plaintiff Fioranelli took footage of 9/11 which he licensed to CBS Broadcasting, Inc., under the terms that only CBS's news divisions could use the footage. But CBS licensed portions of plaintiff's 9/11 footage as part of a larger reel to BBC and T3 who then sublicensed it to 15 non-fiction productions about 9/11. The court granted summary judgment in favor of plaintiff, denying fair use with respect to CBS's reel and 6 productions. The court reasoned that these uses were not fair use because defendants copied the material with no alteration and used it for essentially the same purpose. The court distinguished between using the photo and , for the same commercial purpose that Plaintiff originally intended for the 9/11 Material, thereby undermining the market for Plaintiff's work. The court denied summary judgment with respect to 7 productions, finding issues of fact unresolved with respect to whether the uses were transformative, and if found transformative, whether the amount of 9/11 Material copied was no more than necessary to achieve this transformative purpose. These productions presented more explicitly political arguments and, unlike those in the first category, were designed "to educate viewers about conspiracy theories surrounding 9/11, an arguably different purpose than the original aim of proving a 'photographic memory of the events of 9/11 for posterity.'" The court granted summary judgment in favor of fair use on 2 productions, defendant Paramount's film "World Trade Center" directed by Oliver Stone (another Stone production, "Untold History," was in the second category). There Stone used plaintiff's footage to "construct a setting that likely occurred in many households on September 11, 2001: families watching the events of that day unfold on live television." The featurette was used similarly. The court ruled that this was transformative. (Ed. note: This case shares an uncommon factual scenario with the Warhol Found. v. Goldsmith case: the allegedly infringing works were originally licensed by the copyright holder, and then later used by a third party that obtained the material from the licensee. Leaving that aspect aside, the court appears to have downplayed an important aspect of the uses in several of these films, namely that the material was apparently used as part of a montage or collage-like passage with multiple, quickly appearing clips that included plaintiff's footage. The highly stylized and heavily edited nature of these passages should have been given more weight by the court in the transformativeness analysis, as that kind of juxtaposition adds substantial new meaning or expression. In addition, the fleeting uses by numerous defendants, many less than 2 seconds, most less than 10, should have been given greater weight in the third factor of the fair use analysis even assuming the court's conclusion was correct that the uses were not de minimus.) | Plaintiff's motion for summary judgment | Mixed result (some fair use) | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Miller v. 4Internet, LLC, No. 2:18-cv-02097-JAD-VCF, 2021 U.S. Dist. LEXIS 139585 (D. Nev. July 27, 2021). | 07/27/21 | Plaintiff alleged that Defendant infringed on Plaintiff's copyright of a photograph of a goat when Defendant posted an image of the New York Post article in which the photo was included. Defendant moved to compel written discovery into plaintiff's copyright-claims practices and the source of his income, claiming that Miller "is not a professional photographer as he alleges, but 'a copyright troll and professional litigant.'" A Magistrate Judge granted the motion. Defendant had asserted fair use and misuse defenses. Given that Plaintiff's professional practices were relevant at least to the market value factor in the fair use analysis, the court affirmed the Magistrate Judge's order and overruled Plaintiff's objection to written discovery. (Ed. note: A Higbee case.) | Discovery Request | Fair use not determined | 9th | D. Nev. | Pictorial, graphic, and sculptural works | Photograph |
| Edland v. Basin Elec. Power Coop., No. 4:21-CV-04008-KES, 2021 WL 3080225 (D.S.D. July 21, 2021). | 07/21/21 | Copyright infringement case for unauthorized use, copying and distribution of plaintiff's videos. Plaintiff was an employee who made videos advocating for workplace conditions at the power plant where he worked, which was owned by Defendant. Basin moved to dismiss, inter alia, on fair use grounds. The court denied the motion. Defendant's fair use defense relied on its claim that it submitted the videos in response to an OSHA complaint, and in support of a no trespass order against Plaintiff. But, the court reasoned, nothing in the complaint itself, or materials embraced by the complaint, mention the OSHA complaint or a no trespass order, or any other instance of fair use by Defendant. "Because a fair use defense is not apparent on the face of the complaint, it cannot be grounds for dismissal under Rule 12(b)(6)." The motion was denied. | Motion to dismiss | Fair use not determined | 8th | D.S.D. | Motion pictures and other audiovisual works | Motion picture |
| Wood v. Observer Holdings, LLC, No. 20 Civ. 07878, 2021 WL 2874100 (S.D.N.Y. July 8, 2021). | 07/08/21 | Real estate photographer sued Observer Holdings, LLC for publication of the real estate photos taken of Beyoncé and Jay-Z's Hamptons estate. The Court found that Defendant's fair use defense failed, as the use of the photos was not transformative (defendants made no visible changes to the photos; the photos themselves were not the subject of the news story; the use of photos in the Article communicated nothing new or different from their original use in the real estate marketing materials"“"“in both instances they were used to show the house); photos were used for commercial purposes (almost all newspapers are published by commercial enterprises that seek a profit); Defendant made substantial use of the photos (argument that only 13 of the 33 photos taken were used is inconsequential, as each photo itself was used in its entirety); and Defendant's unauthorized use deprived Wood of licensing revenues. While it is true that photographs are somewhat creative in that the home required staging, they were published only to prospective buyers and on Compass's publicly accessible website. In sum, concluded the court, it was not possible to conclude that defendants' use of the photographs was fair as a matter of law. | Motion to dismiss | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Philpot v. Lending Tree, LLC, No. 3:20-cv-268-RJC-DSC, 2021 WL 2768859 (W.D.N.C. July 2, 2021). | 07/02/21 | Plaintiff alleged Lending Tree infringed his copyright in a photograph of Willie Nelson in St. Louis, Missouri by reproducing and publicly displaying the photograph on the defendant's website without prior consent and authorization of the plaintiff. Defendant moved to dismiss based on fair use. The District Court accepted the Magistrate's recommendation that the Defendant's motion to dismiss be denied because there was not enough evidence on the face of the Complaint to resolve either factor in the fair use analysis. Even assuming the facts were developed, the court rejected the defendant's argument that the photograph was transformative because the only purpose of the photograph is "to identify Willie Nelson as one of the subjects of LendingTree's financial blog post." Instead, such identifying uses are not transformative. Additionally, the court rejected the Defendant's argument that the "heart of the work" is "concert photography." On the contrary the court held that the focus of the photograph that is Nelson himself, making him the "heart of the work." | Motion to dismiss | Fair use not determined | 4th | W.D.N.C. | Pictorial, graphic, and sculptural works | Photograph |
| Tom Hussey Photography, LLC v. HEROfarm LLC, No. No. 21-684, 2021 WL 2710508 (E.D. La. July 1, 2021), No. No. 21-684, 2021 WL 2710508 (E.D. La. July 1, 2021). | 07/01/21 | Defendant allegedly made unauthorized use of a series of photographs to which plaintiff allegedly held a valid copyright. The court denied defendant's motion to dismiss without analyzing defendant's fair use argument. "In this case," the court held, it "simply does not have enough before it to grant a motion to dismiss"”particularly as to the fourth factor, the effect of the alleged violation on the market for the photographs. | Motion to dismiss | Fair use not determined | 5th | E.D. La. | Pictorial, graphic, and sculptural works | Photograph |
| Stebbins v. Polano, No. 21-cv-04184-JSC, 2021 WL 2682339 (N.D. Cal. June 30, 2021). | 06/30/21 | Pro se plaintiff and defendant are each Youtubers and Twitch streamers. Defendant used 43 seconds directly from a video to which plaintiff owns the copyright. The court issued a screening order pursuant to 28 U.S.C. §1915. In assessing plaintiff's claims under 17 U.S.C. §512(f)(2) for misrepresentation, the court held that plaintiff had not complied with Federal Rule of Civil Procedure 8 (setting forth basic pleading standards) with respect to this claim because the complaint did "not plausibly suggest that any misrepresentation in Defendant's Counter-Notice was knowing. The allegations more plausibly suggest that Defendant believed his use of Plaintiff's video was fair use, and that such a belief might have been reasonable" given that the defendant wrote disclaimers including "this is a parody" on his video. The court dismissed the case but left Plaintiff to amend. | Other | Fair use not determined | 9th | N.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Philpot v. MyArea Network, Inc., No. 8:20-cv-1239-VMC-TGW, 2021 WL 2649236 (M.D. Fla. June 28, 2021). | 06/28/21 | Copyright infringement case about two Philpot photographs placed in blog posts by a social media platform. Both Philpot and MyArea Network filed motions for summary judgment. Philpot's motion for summary judgment was granted in part, denied in part based on his fair use argument. My Area Network's motion for summary judgment was denied, finding that (1) the use was not transformative and was commercial; (2) the photographs were "minimally creative" and therefore factor two weighed slightly against fair use; (3) MyArea Network used the entirety of the photographs, though this factor weighs less when it comes to photographs; and (4) the market factor weighed heavily in favor of fair use because "the fact that he offers the...photographs for free with attribution undermines a finding of damage to a potential market." The court concluded that, even though factors 1-3 weigh slighly against fair use and factor 4 weighs "heavily" in favor of use, "a reasonable jury could find that fair use does not apply" and therefore denied summary judgment. (Ed. note: Plaintiff's business model here appears to be posting his photos under Creative Commons licenses and laying in wait for unsuspecting users to misapply the requirements of those licenses. The court noted that, "During his deposition, Philpot could not recall any instances in which he was paid for his photographs outside of alleged infringement actions. The majority of Philpot's compensation for his photographs has come primarily from pursuing enforcement actions related to his rights under his copyrights and Creative Commons Licenses." In light of the Supreme Court's ruling in Google v. Oracle, we question whether the court was correct in denying judgment because "a reasonable jury could find that fair use does not apply." Nevertheless, the case settled about two weeks after this decision.) | Defendant's motion for summary judgment | Likely fair use | 11th | M.D. Fla. | Pictorial, graphic, and sculptural works | Photograph |
| Farrington v. Backchina LLC, No. H-19-3546, 2021 WL 2581418 (S.D. Tex. June 23, 2021). | 06/23/21 | Copyright infringement case brought by photographer against Chinese news site BackChina for displaying plaintiff's photos on its website without a license. BackChina raised a fair use defense, but the court granted plaintiff's motion for summary judgment. Farrington's photos do more than add "context" to the story; they add drama, power, and detail. BackChina profited from Farrington's images because it posted banner advertisements with them and did not have to hire a photographer or pay a licensing fee. Although portraying public events, Farrington made creative decisions like deciding what equipment to use, choosing the location, and framing subjects. Furthermore, BackChina did not just use portions of Farrington's photos, it used exact duplicates. Farrington lost the opportunity to license the use of the photographs to BackChina because it posted the images without a license. (Ed. note: A Higbee case.) | Plaintiff's motion for summary judgment | Not fair use | 5th | S.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Greenspan v. Qazi, No. 20-cv-03426-JD, 2021 WL 2577526 (N.D. Cal. June 23, 2021). | 06/23/21 | Copyright infringement case on the autobiography of plaintiff, portions of which were published on the defendant's personal website embedded in "fake reviews" of the book, brutally insulting the plaintiff. The court found this to be fair use. Factor one: the use of the excerpts for the purpose "of commentary and criticism" is closer to fair use than if it were "unlawful usurpation of another's creative works for commercial gain." Factor two: The nature of the work also points toward fair use in that it is a work of non-fiction. Factor three: The defendant copied more than 10% of the book, far in excess of 1000 words. "This allegation is neutral with respect to fair use because the [complaint] does not provide enough facts about what Qazi did with this material to determine whether this was ore than 'reasonably necessary' for Qazi to get his message across." Final factor: Whether the new use has an effect on the potential market for the copyrighted works. The plaintiff does not allege anything beyond damage to his reputation and goodwill. This is not proper for a copyright claim. Thus, this claim is dismissed. | Motion to dismiss | Fair use | 9th | N.D. Cal. | Literary works | Book |
| Radabaugh v. Clay Turner Realty Group, LLC, No. CV 120-058, 2021 WL 2463576 (S.D. Ga. June 16, 2021). | 06/16/21 | Copyright infringement suit brought by photographer against real estate company for publishing a photo taken by the photographer of the local train depot on the real estate company's website. The first and second factor were uncontested in Plaintiff's favor. The Court found the third factor neutral, despite the fact that Defendant used Plaintiff's photo in its entirety as "'[t]his factor weighs less when considering a photograph - where all or most of the work often must be used in order to preserve any meaning at all."The Court found that the fourth factor weighed against Defendant, however "only lightly" as"“"“although Plaintiff established that there was a market for the photograph"“"“Plaintiff did not provide evidence that she lost potential licenses from Defendant's use or that use caused substantial economic harm and it was unlikely that the presence of the depot photogaph on Defendant's website somehow made it less attractive for licensing or other use. The court rejected Defendant's fair use argument. (Ed note: A Richard Liebowitz case.) | Plaintiff's motion for summary judgment | Not fair use | 11th | S.D. Ga. | Pictorial, graphic, and sculptural works | Photograph |
| Mattel, Inc. v. Unicorn Element, No. 21 Civ. 2333 (VM), 2021 WL 2292918 (S.D.N.Y. June 4, 2021). | 06/04/21 | Plaintiff Mattel Inc., which owns the trademark for BARBIE and the copyright in a Barbie illustration, sued several defendants for trademark and copyright infringement. Defendants had used a portion of Plaintiff's illustration on the packaging of one of its products. The court rejected defendants' fair use claims and granted Mattel's motion for attachment. | Other | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Art |
| Elatab v. Hesperios Inc., No. 19 CV 9678 (ALC), 2021 WL 2226877 (S.D.N.Y. June 2, 2021). | 06/02/21 | Plaintiff took a photograph of Bella Hadid and registered it with the U.S. Copyright Office. Defendant put that photo on Instagram without licensing it from the Plaintiff. Court ruled that an infringing activity happened, namely that Defendant placed a copyrighted photo on its instagram without consent of P. No claims of willfullness made; P inadequately pled this claim, so court dismissed in part here. Court also ruled there was no fair use because D posted picture for commerical benefit, namely to promote the clothes Hadid was wearing in the photograph. (Ed note: A Richard Liebowitz case.) | Motion to dismiss | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Am. Soc'y of Cinematographers v. Schatz, No. 2:20-CV-08607-ODW (JCx), 2021 U.S. Dist. LEXIS 194091 (C.D. Cal. May 25, 2021). | 05/25/21 | Defendant is a renowned photographer. Plaintiff reproduced defendant's photograph in its entirety in an article for plaintiff's magazine. Underneath the photo, there is an advertisement encouraging the readers to "Subscribe Today". Plaintiff sought declaratory judgment of non-infringement on fair use grounds. Defendants filed a counterclaim for copyright infringement, which Plaintiff moved to dismiss and for judgment on the pleadings. The court found that plaintiff used the picture to promote and garner subscriptions to its magazine and thus indirectly profited, though the use was slightly transformative. For factor two, the court disagreed with the plaintiff that the photograph was factual in nature because the photographer's choice in lighting and angles required creativity. For factor three, the court agreed with the plaintiff that reproducing the entire photograph was necessary to achieve its purpose. The court also explained that a photograph is not "meaningfully divisible" in ways that other works might be. As to factor four, plaintiffs did not provide evidence rebutting defendant's claim that there is a market for licensing the photo, so the court determined that the factor weighed against fair use. The court ultimately denied plaintiff motion. (Ed note: A Higbee case.) | Motion to dismiss | Not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Brown v. Netflix, Inc., 855 F. App'x 61 (2d Cir. 2021). | 05/18/21 | Musician Plaintiffs sued video streaming defendants for copyright infringement over a song that appeared in a 2017 documentary film streamed on Defendants' video services. The S.D.N.Y. entered judgment for the defendants after finding that the use in the documentary was fair use. The documentary had included eight seconds of Plaintiffs' song, "Fish Sticks n' Tater Tots," about "a student's journey from her classroom to her school cafeteria to eat fish sticks and tater tots for lunch." The district court granted Defendants' motion to dismiss on fair use grounds because Defendants' use transformed the work's comedic purpose and was of very limited duration. Regarding the market factor, the court noted that the film targeted a very different audience, and in any event, "not every effect on potential licensing revenues enters the analysis under the fourth factor, and a copyright holder has no right to demand that users take a license unless the use that would be made is one that would otherwise infringe an exclusive right." The Second Circuit affirmed in a brief summary order. Appeal from Brown v. Netflix, Inc., 2020 U.S. Dist. LEXIS 92739 (S.D.N.Y. May 27, 2020). (Ed. note: The Second Circuit's opinion strongly endorses the principle that documentary films often make quintessential fair use, holding that "the documentary character of the Film fits within those uses identified by § 107" and that "Defendants' incidental use of the Song is consistent with the Film's nature as a documentary providing commentary and criticism.") (Ed note: For a discussion of this case, see Jack Lerner, "Fair Use for Documentary: A Never-Ending Fight," Documentary (July 8, 2020).) | Motion to dismiss | Fair use | 2d | 2d Cir. | Musical works | Musical composition |
| Fotohaus LLC v. Advanced Plan for Health, LLC, No. 3:20-CV-2049-S-BN, 2021 WL 2690093 (N.D. Tex. Apr. 20, 2021). | 04/20/21 | Copyright infringement case concerning use of a photograph that depicts a pair of hands holding white oblong pills. A Magistrate Judge recommended the court grant defendant's motion to dismiss because the complaint failed "to state facts showing or supporting an inference that the Photograph possesses at least some minimal degree of creativity." With respect to defendant's fair use defense, however, the Magistrate Judge recommended that the court not grant the motion to dismiss on that gound. Though the M.J. concluded that all four factors weighed in Fotohaus's favor, he concluded that at this stage of the proceedings a decision on fair use is premature. The district court later adopted the Magistrate Judge's recommendations. | Motion to dismiss | Fair use not determined | 5th | N.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Michael Grecco Productions, Inc. v. Livingly Media, Inc., No. CV 20-0151 DSF (JCx), 2021 WL 2546749 (C.D. Cal. Apr. 16, 2021). | 04/16/21 | Plaintiff alleges copyright infringement for Defendant's use of four still photographs of X-files characters taken by Plaintiff on Defendant's websites. Plaintiff sent Defendant a cease and desist for photographs, and Defendants replaced photograph and attempted to locate other photographs taken by Plaintiff to replace. However, Defendant failed to locate all of the those photographs, and Plaintiff sent another cease and desist. Upon receiving the cease and desist, Defendant promptly removed photographs. Plaintiff moved for summary judgment on, inter alia, Defendant's fair use defense. The court held that the use of the photos here (in four articles with titles like "Movies and TV Shows to Watch If You're Obsessed with Netflix's 'Stranger Things'') was slightly transformative, but the third and fourth factors weighed against fair use. Motion for Summary Judgment granted. (Ed. note: Doniger Burroughs was counsel on the case; Higbee & Associates is also mentioned.) | Defendant's motion for summary judgment; Plaintiff's motion for summary judgment | Not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Google v. Oracle, 141 S.Ct. 1183 (2021). | 04/05/21 | Google copied computer code from Sun's Java SE API to develop a platform for its Android devices that allowed skilled Java programmers to develop compatible programs. The Supreme Court, assuming for the sake of argument that the original code was copyrightable, held that Google's copying of the Java code was fair use as a matter of law because, in pertinent part, no more code was copied than necessary for developing a new platform that was accessible to experienced programmers. The copied code was part of a user interface that was inherently bound with uncopyrightable ideas like organization and categorization of the API, and the value of the copied code was derived from the users that learned the API as opposed to the creative expression of the code itself. Google's use served the transformative purpose of creating a platform that facilitated program development in a new environment for programmers experienced in Java. While Google copied almost all of what it called Java's "declaring code," that code only amounted to 0.4% of the entire API. Sun did not participate in the mobile device market for reasons unrelated to Google's use, and it was in fact projected to benefit from Google's use as more programmers would be encouraged to use Java. The Court issued additional guidance with resepect to the market factor, instructing that "loss of revenue is not the whole story." In addition to loss of revenue, "we must take into account the public benefits the copying will likely produce. Are those benefits, for example, related to copyright's concern for the creative production of new expression? Are they comparatively important, or unimportant, when compared with dollar amounts likely lost (taking into account as well the nature of the source of the loss)?" Finally, the Court clarified the role of the jury in fair use determinations: fair use is a mixed question of fact and law, and therefore "reviewing courts should appropriately defer to the jury's findings of underlying facts; but that the ultimate question whether those facts showed a 'fair use' is a legal question for judges to decide de novo" given that many questions of fair use (including the one at bar) will, ultimately, "primarily involve legal work." | Jury trial; Other | Fair use | S. Ct. | U.S. Supreme Court | Literary works | Software |
| Marano v. Metropolitan Museum of Art, 844 F. App'x 436 (2d Cir. 2021). | 04/02/21 | Photographer brought action against art museum alleging that museum infringed his copyright by featuring his photograph of virtuoso rock guitarist Eddie Van Halen playing his iconic custom guitar in an exhibition of rock n' roll instruments on museum's website. The United States District Court for the Southern District of New York dismissed and denied the motion for reconsideration, from which the photographer now appeals. The Court of Appeals held that art museum's display of photograph in website exhibition constituted fair use under Copyright Act. Use of the photo was found to be sufficiently transformative in focussing on the featured guitar and its historical significance. This differed from the stated focus of the photo, showing what Van Halen looked like while performing. The use of the photo was also found to not be commercial since the Met is a nonprofit. Moreover, the Court found there was no evidence that the use could impair any market for commercial use of the photo or diminish its value. Summary order. Appeal from Marano v. Metropolitan Museum of Art, No. 19-CV-8606 (VEC), 2020 U.S. 2020 U.S. Dist. LEXIS 122515 (S.D.N.Y. July 13, 2020). (Ed. note: A Liebowitz Law Firm case.) | Other | Fair use | 2d | 2d Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Sketchworks Indus. Strength Comedy, Inc. v. Jacobs, No. 19-CV-7470-LTS-DCF, 2021 WL 1226955 (S.D.N.Y. Mar. 31, 2021). | 03/31/21 | Plaintiff brought this action seeking declaratory judgment that, among other things, its theatre production titled "Vape," a parody of Grease, constituted fair use. Defendants argued that the case was moot and the Court lacked subject matter jurisdiction because Plaintiff had no standing and no live case or controversy remained after Defendant's licensing agent withdrew the cease and desist letter. The Court found otherwise. Here, Plaintiff had intentions to perform this production, had cancelled scheduled performances, and their requests to Defendants for a covenant not to sue and a release had gone unanswered. Moreover, the court held that an actual controversy exists over whether "Vape" is fair use. The Court denied Defendant's motion to dismiss. | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Musical works | Musical composition |
| OMG Accessories LLC v. Mystic Apparel LLC, No. 19 CV 11589 (ALC) (RWL), 2021 WL 1167528 (S.D.N.Y. Mar. 25, 2021). | 03/25/21 | The Plaintiff had a copyright on a design pattern called a "Unicorn Pattern." P's complaint alleged that the D's replicated its design pattern on a backpack because the Unicorn had closed eyes with distinctive eyelashes, rainbow colored locks, glittered horn and pink hearts on the face or cheek of the unicorn. The court agreed with the D's that these elements were not protectable, but that the cumulative effect of each of these elements did create an impression of similarity that was undeniable. Therefore, the court ruled that it would be inappropriate to rule as a matter of law whether substantial similarity existed at this stage. The same logic was employed for the fair use claim. Two of the factors, the court ruled, purpose and character of the alleged use and the effect of the use upon the potential market for value of the copyrighted work, could not be determined at this stage. Defendant's motion to dismiss was accordingly denied. (Ed note: This case involves a backpack with very basic design elements allegedly copied from a textile pattern, such as closed eyes and long eyelashes. Leaving fair use aside, even in light of the broad standard for protectibility set forth in Star Athletics, plaintiff would seem to have a weak copyright infringement claim here based on the scenes a faire doctrine and originality.) | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Design |
| Von Der Au v. Michael G. Imber, Architect, PLLC, No. SA-20-CV-00360-XR, 2021 WL 1131719 (W.D. Tex. Mar. 24, 2021). | 03/24/21 | Plaintiff sued Defendant for copyright infringement over Defendant's use of Plaintiff's photograph on Defendant's website. The post on Defendant's website did not attribute ownership of the photograph to Plaintiff and Plaintiff did not give permission to Defendant to publish the photograph. Defendant argued fair use, but the Court found that Defendant used the entirety of the photograph for commericial use, which leaned towards a finding against fair use. The court granted Plaintiff's motion for summary judgment. | Plaintiff's motion for summary judgment | Not fair use | 5th | W.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Hollywood Unlocked, Inc. v. Lifetime Entm't Servs., LLC, No. 2:20-cv-11273-MCS-RAO, 2021 U.S. Dist. LEXIS 144483 (C.D. Cal. Mar. 17, 2021). | 03/17/21 | Defendant used segment of Plaintiff's talk radio format interview in a documentary film about R. Kelly. The court declined to decide fair use at the motion to dismiss stage, reasoning that to do so would be to go beyond the complaint and decide questions of fact. | Motion to dismiss | Fair use not determined | 9th | C.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Frisby v. Sony Music Entertainment, No. CV 19-1712-GW-AGRx, 2021 WL 2325646 (C.D. Cal. Mar. 11, 2021). | 03/11/21 | Both plaintiff's song "Shawty So Cold" and defendants' songs, including "Exchange" by Tiller, sampled from the 1998 hit "Swing My Way" by KP & Envyi. The district court held that plaintiff did not have a valid copyright in the portions of "Shawty" that sampled important parts of "Swing" without a license, and plaintiff had not shown that any other portions of "Shawty" were copied by defendants. Plaintiff also argued, however, argued that his use of "Swing My Way" was fair use and therefore he had a copyright interest in "Shawty" upon which defendants infringed. The court rejected this argument, finding no transformative use and that serious market harm to the market would occur if the court were to hold otherwise. (Ed note: This case is somewhat unique in that surprisingly few cases have analyzed whether sampling is fair use, and because here plaintiff attempted to use fair use offensively.) | Defendant's motion for summary judgment | Not fair use | 9th | C.D. Cal. | Musical works | Musical composition |
| Pyrotechnics Management Inc. v. XFX Pyrotechnics LLC, No. 2:19-cv-00893, 2021 WL 925812 (W.D. Pa. Mar. 11, 2021). | 03/11/21 | Copyright infringement suit regarding pyrotechnics firing systems (fireworks). The court held that defendant fireTek's use of command/control software protocols were not fair use and ruled in favor of Pyrotechnics. The court held that Pyrotechnics's command code was an original work of authorship registered with the U.S. Copyright Office. The court held that fireTek's conduct was not fair use because (1) fireTek copied Pyrotechnics code verbatim (non-transformative), (2) codes are protected under copyright law (nature of work), (3) the entire code was copied (amount of work used), and (4) Pyrotechnic's market share would be threatened by fireTek's product. | Preliminary injunction | Not fair use | 3d | W.D. Pa. | Literary works | Software |
| ENTTech Media Group LLC v. Okularity, Inc., No. 2:20-cv-06298-JWH-Ex, 2021 WL 916307 (C.D. Cal. Mar. 10, 2021). | 03/10/21 | Plaintiff alleged that defendants celebrity photographers and their agents were engaged in an unlawful enterpise by using DMCA notices to extort social media users and brought suit pursuant to section 512(f) of the DMCA which requires a subjective good faith belief that the subject of the DMCA is infringing. In the 9th Circuit, this includes a consideration of fair use. While the defendant's DMCA notices did contain fair use analysis, the analyses were nearly identical. The court determined that the question of whether the defendant had a good faith belief of infringment and not fair use was a factual question not suitable for motions to dismiss. (Defendants' Rule 11 motion and plaintiff's RICO claims also rejected.) | Motion to dismiss | Fair use not determined | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Golden v. Michael Grecco Productions, Inc., 524 F. Supp. 3d 52 (E.D.N.Y. Mar. 9, 2021). | 03/09/21 | Golden used Grecco's photograph of Xena: Warrior Princess on his blog. After a demand letter by Grecco, Golden sued for Declaratory Judment. The court granted Grecco's motion for summary judgment as to fair use. The court found that fair use did not exist in this case, holding in pertinent part because the use was not transformative, a Golden used the image to illustrate the subject of his story rather than as a historical artifact or in a story about the photo. (Ed. note: In this case, discovery showed that Grecco had only made $3.94 in licensing fees since 2010, yet his counsel had demanded a $25,000 licensing fee. The court noted that the conduct of Grecco's counsel (apparently Ray L. Ngo, who has worked with Higbee & Associates) led a judge in the S.D.N.Y. "to suggest that Grecco's counsel might be considered a 'copyright troll.'" The court awarded the minimum statutory damages of $750, and denied attorney's fees.) | Defendant's motion for summary judgment | Not fair use | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| MidlevelU, Inc. v. ACI Information Group, 989 F.3d 1205 (11th Cir. 2021). | 03/03/21 | Blog operator MidLevelU alleged that content aggregator ACI infringed on its copyright when ACI republished blog materials made available via RSS. A jury found for Midlevel and the court denied the aggregator's motion for judgment as a matter of law and for a new trial or for remittitur. The Eleventh Circuit affirmed on numerous grounds such as implied license, including fair use. The court affirmed, and held that ACI had not shown that no reasonable juror could have found for Midlevel on fair use with respect to each of the four factors. (Ed note: In light of the Supreme Court's subsequent ruling in Google v. Oracle that courts must evaluate a jury's facutal findings with deference but the ultimate fair use question is a de novo question for the court, the Eleventh Circuit arguably applied the wrong standard here. Given the court's conclusions as to fair use, however, the outcome likely would not have been any different either way.) | Jury trial | Not fair use | 11th | 11th Cir. | Literary works | Online literary work |
| Helmer v. Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., No. 1:20-CV-105, 2021 WL 428647 (S.D. Ohio Feb. 8, 2021). | 02/08/21 | Copyright infringement case over guides to whistleblower law published in 1994 and 2016. The district court denied defendants' motion to bifurcate trial between liability and damages phases. Defendants had stated that they planned to pursue a fair use defense, but the court noted that "this defense would also likely involve evidence applicable to both liability and damages. Under a fair use defense, Defendants would likely have to prove whether the Beasley Book's 'use is of a commercial nature or is for nonprofit educational purposes.' If this case were to be bifurcated, defense witnesses could be forced to testify twice: first about how the Beasley Book was written and for what purposes it was marketed, and then a second time about the profits Beasley Allen realized as a result. | Other | Fair use not determined | 6th | S.D. Ohio | Literary works | Book |
| Larson v. Dorland Perry, No. 19-CV-10203-IT, 2021 WL 352375 (D. Mass. Feb. 2, 2021). | 02/02/21 | Dorland wrote a letter regarding her decision to donate a kidney and claimed Larson committed copyright infringement of the letter in a short story. Larson claimed, inter alia, fair use. The court declined to consider fair use in a motion to dismiss, reasoning that to do so "would require a factual examination of the purpose of Larson's use, the nature of Larson's work, and the effect of Larson's use on the market or value of Dorland's work. None of these may be gleaned from the Cross-complaint or the works themselves. Accordingly, the court cannot conclude that Larson's use constituted fair use as a matter of law." | Motion to dismiss | Fair use not determined | 1st | D. Mass. | Literary works | Miscellaneous literary work |
| DeLima v. Google, Inc., 561 F. Supp. 3d 123 (D.N.H. 2021). | 01/28/21 | Pro se plaintiff sued Google over alleged censorship of social media posts, including violation of fair use rights. Court held that violation of "fair use laws" is not a viable claim, "as 'fair use' is a defense to a copyright or trademark infringement claim and not a basis for an affirmative claim." | Motion to dismiss | Fair use not determined | 9th | D.N.H. | Literary works | Online literary work |
| Monsarrat v. Newman, 514 F. Supp. 3d 386 (D. Mass. 2021). | 01/21/21 | Defendant was the admin for a LiveJournal community and moved the entire archive to a different service. Plaintiff claimed copyright infringement in one post that had been moved. The district court granted defendant's motion to dismiss on fair use grounds. The court held that defendant "did not publish the copyrighted post for the same purposes for which [plaintiff] initially created it; the plaintiff's use being "to highlight LiveJournal's harassment policy and demand deletion of other posts on the community website which he viewed as violative," and the defendant's "reproduction, on the other hand, was created solely for historical and preservationist purposes." The court also found that the second factor favored defendant given the mostly factual nature of the post, and concluded that there was no plausible market for the copyrighted post and thus no likelihood of market harm. | Motion to dismiss | Fair use | 1st | D. Mass. | Literary works | Online literary work |
| Gayle v. Allee, No. 18 CIV. 3774 (JPC), 2021 WL 120063 (S.D.N.Y. Jan. 13, 2021). | 01/13/21 | Pro se plaintiff brought action for copyright infringment over graffiti plaintiff allegedly authored containing the words "ART WE ALL." Court declined to consider fair use claims given that it had dismissed on other grounds. | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Art |
| Boesen v. United Sports Publ'ns. Ltd., No. 20-CV-1552 (ARR) (SIL), 2020 U.S. Dist. LEXIS 240935 (E.D.N.Y. Dec. 22, 2020). | 12/22/20 | Plaintiff moved to reconsider the district court's dismissal of his copyright infringement action against Defendant (see 2020 U.S. Dist. LEXIS 240935), which embedded an Instagram post containing Plaintiff's photo in its news article. The court found no issues with its previous analysis. The court once again distinguished situations where the defendant reproduces a photograph for the purpose of reporting on the photo itself (as in the instant case) from those in which the defendant reports on the contents of the photo. Additionally, the fact that Defendant ran advertisements alongside the article did not imply that Defendant used the photo for a commercial purpose. Finally, there was no likelihood of market harm because Defendant (a) reported on the Instagram post itself and (b) used a cropped, low-resolution version of Plaintiff's photo. Thus, the court denied Plaintiff's motion for reconsideration. (Ed. note: a Richard Liebowitz case.) | Other | Fair use | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 983 F.3d 443, 448 (9th Cir. 2020). | 12/18/20 | Defendant wrote book that combined elements of Dr. Seuss's Oh, the Places You'll Go! and Star Trek. District court granted Defendant's motion for summary judgment on fair use grounds. The Ninth Circuit reversed. Though the court expressly affirmed that "mash-ups" can be fair use, it determined that Defendant's book did not make transformative use because it was not a parody and "d[id] not seriously contend" that the allegedly infringing book critiques or comment on the original. Citing its well-known earlier decision involving The Cat In The Hat, the court held that defendant's book merely mimicked Dr. Seuss's style without subjecting Dr. Seuss's work to ridicule. | Defendant's motion for summary judgment | Fair use not determined | 9th | 9th Cir. | Literary works | Book |
| Castle v. Kingsport Publ'g Corp., No. 2:19-CV-00092-DCLC, 2020 U.S. Dist. LEXIS 233919 (E.D. Tenn. Dec. 14, 2020). | 12/14/20 | Plaintiff took a drone photograph of a controversial planned site for a public school in an attempt to prove that the school was being built on a sinkhole. After Plaintiff presented an enlarged version and distributed copies at a school board meeting, Defendant reproduced the photo in an article reporting on the school board engineer's position that the formations in question were not sinkholes but the result of blasting operations. Plaintiff sued for copyright infringement, and Defendant raised the fair use defense. The district court held that Defendant used the photo for the transformative purpose of news reporting and to report on a controversy to which Plaintiff's photo was central. The court was also skeptical of the notion that there could be a market for a drone image of a high school construction site. Accordingly, the court granted Defendant's motion for summary judgment. | Defendant's motion for summary judgment | Fair use | 6th | E.D. Tenn. | Pictorial, graphic, and sculptural works | Photograph |
| Sands v. What's Trending, No. 20-CV-02735 (GBD) (KHP), 2020 U.S. Dist. LEXIS 236019 (S.D.N.Y. Dec. 14, 2020). | 12/14/20 | Plaintiff took a photo of actor Joaquin Phoenix on a movie set dressed as the Joker. Defendant published an online article entitled "First Pics of Joaquin Phoenix As The JOKER Released" that included Plaintiff's photo. Plaintiff sued for copyright infringement and Defendant moved to dismiss on fair use grounds. A Magistrate Judge found Defendant's use non-transformative because Defendant used Plaintiff's photograph for the same purpose for which it was taken, which the judge characterized as: "to document the comings and goings of celebrities, illustrate their fashion and lifestyle choices, and accompany gossip and news articles about their lives to show what Phoenix looked like on the movie set." Though the opinion also acknowledged that Defendant commented specifically on the photo and "sought to glean as much information as possible from the Photograph and to interpret the copyrighted work to keep its readers informed," the MJ recommended denying Defendant's motion to dismiss. Court later adopted magistrate judge recommendation, see Sands v. What's Trending, 2021 U.S. Dist. LEXIS 33503 (S.D.N.Y. Feb. 23, 2021). (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Oppenheimer v. ACL LLC, 504 F. Supp. 3d 503 (W.D.N.C. 2020). | 12/02/20 | Defendant placed Plaintiff's photograph of a Harrah's lobby on its website to promote a cornhole event. Plaintiff sued for copyright infringement. As to fair use, the district court noted that Defendant used the entirety of the photo for what "appear[ed] to be a commercial purpose" (i.e., to promote the cornhole event) but declined to grant Plaintiff's motion for summary judgment as to fair use because Plaintiff had not established facts sufficient to show that the secondary use usurped the market for the original work. The court noted that the record contained very little facts about the value of and expected profit from the photograph. (Ed. note: This case was brought by frequent copyright plaintiff David Oppenheimer.) | Plaintiff's motion for summary judgment | Fair use not determined | 4th | W.D.N.C. | Pictorial, graphic, and sculptural works | Photograph |
| Nat'l Comm'n for the Certification of Crane Operators v. Nationwide Equip. Training, No. 1:20-cv-483-TFM-M, 2020 U.S. Dist. LEXIS 239754 (S.D. Ala. Nov. 24, 2020). | 11/24/20 | Plaintiff writes and administers certification examinations for prospective crane operators. Defendant allegedly copied and sold Plaintiff's secret exam questions; Plaintiff sued for copyright infringement and requested a preliminary injunction. The district court did not buy Defendant's fair use defense; defendant used the questions in a non-transformative manner for a commercial purpose. Furthermore, the court determined that the fourth factor (market harm) weighed in Plaintiff's favor as well based inter alia on the conclusion that Plaintiff's accreditation was jeopardized by the infringement. The district court granted Plaintiff's motion for a preliminary injunction. | Preliminary injunction | Not fair use | 11th | S.D. Ala. | Literary works | Testing materials |
| Aoki v. Gilbert, No. 2:11-cv-02797-TLN-CKD, 2020 U.S. Dist. LEXIS 215130 (E.D. Cal. Nov. 16, 2020). | 11/16/20 | Defendant repeatedly used Plaintiff's copyrighted slide deck (the subject of which was Plaintiff's patented diabetes treatment method). Defendant's use was unequivocally non-transformative and commercial because Defendant used copies of the slides for the purpose of attracting investors. The court also found that Defendant "caused confusion in the market" by representing that the results depicted in the slides resulted from Defendant's treatment method (rather than Plaintiff's). The court rejected Defendant's fair use defense and found Defendant liable for copyright infringement. | Bench trial | Not fair use | 9th | E.D. Cal. | Literary works | Miscellaneous literary work |
| Lanard Toys v. Anker Play Prods., No. CV 19-4350-RSWL-AFMx, 2020 U.S. Dist. LEXIS 221783 (C.D. Cal. Nov. 12, 2020). | 11/12/20 | Plaintiff alleged that Defendants copied its toy packaging for a toy called "Chalk Bomb!" The district court found a triable issue of fact as to whether there was striking similarity between the parties' packaging but rejected Defendants' fair use defense because Defendants "used Plaintiff's works commercially and derived a financial benefit from that use" under the first factor, and presumed a likelihood of market harm because "Defendants' intended use was for commercial gain." The court granted plaintiff's motion for summary judgment as to fair use. | Plaintiff's motion for summary judgment | Not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Design |
| Boesen v. United Sports Publ'ns. Ltd., No. 20-CV-1552 (ARR) (SIL), 2020 U.S. Dist. LEXIS 203682 (E.D.N.Y. Nov. 2, 2020). | 11/02/20 | Plaintiff's photograph was featured in an Instagram post in which Caroline Wozniacki, a former professional tennis player, announced her retirement. Defendant, a tennis news website, embedded the post, including the photograph, in an article about Wozniacki's retirement. The district court's analysis followed Walsh v. Townsquare Media, Inc., No. 19-CV-4958 (VSB), 2020 U.S. Dist. LEXIS 96090 (S.D.N.Y. June 1, 2020). In each case, the news article embedded the Instagram post in question because the post itself was the subject of the story. Here, Defendant's post served the transformative purpose of reporting on Wozniacki's Instagram post, not as a generic image of Wozniacki. The court also found it implausible that Defendant's use could usurp the market for Plaintiff's photograph since Defendant only reproduced the photo as part of Wozniacki's post. The court granted Defendant's the motion to dismiss. On 3/25/21, the court denied defendant's motion for attorney's fees partially on the grounds that plaintiff's position against fair use was novel but not unreasonable. Boesen v. United Sports Publs., 2021 U.S. Dist. LEXIS 57706. | Motion to dismiss | Fair use | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Fellner v. Travel 4 All Seasons LLC, No. CV-19-01719-PHX-DJH, 2020 U.S. Dist. LEXIS 198638 (D. Ariz. Sep. 30, 2020). | 09/30/20 | Defendant reproduced roughly half of Plaintiff's news article on his travel website without permission. Plaintiff sued for copyright infringement, and Defendant moved for summary judgment on fair use grounds. The court based its first factor analysis exclusively on "whether the use was for commercial purposes," ignoring the transformativeness analysis. It determined Defendant's use was not for commercial purposes because Defendant operated a free blog and did not make a monetary profit. The court also "consider[ed] that Defendant identified Plaintiff as the author of the Article and provided a citation to the original work, in order that any visitor to the website could read the Article in full." The court found that the article was primarily factual, rejected Plaintiff's contention that Defendant's free blog was a "competing news organization," and Plaintiff introduced no evidence of reduced economic opportunities in the market. The court granted Defendant's motion for summary judgment. (Ed note: a Richard Liebowitz case) | Defendant's motion for summary judgment | Fair use | 9th | D. Ariz. | Literary works | News material |
| Iantosca v. Elie Tahari, Ltd., No. 19-cv-04527 (MKV), 2020 U.S. Dist. LEXIS 171512 (S.D.N.Y. Sep. 18, 2020). | 09/18/20 | Plaintiff photographed a model wearing Defendant fashion label's clothing. Defendant posted the photograph on its Facebook and Twitter accounts without Plaintiff's permission, and Plaintiff sued for copyright infringement. The court rejected Defendant's fair use defense because Defendant used the entirety of Plaintiff's photograph for a commercial purpose and in a manner that precluded Plaintiff from obtaining a licensing fee. Thus, the district court granted Plaintiff's motion for summary judgment. (Ed. note: a Richard Liebowitz case.) | Plaintiff's motion for summary judgment | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Chapman v. Maraj, No. 2:18-cv-09088-VAP-SSx, 2020 U.S. Dist. LEXIS 198684 (C.D. Cal. Sep. 16, 2020). | 09/16/20 | Nicki Minaj (defendant) created a cover of a song based on a song by Tracy Chapman (plaintiff). Minaj refrained from including her song on her album since her attempts to obtain a license from Chapman were unsuccessful, but someone leaked Minaj's song to a radio DJ. Chapman sued Minaj for infringement of her distribution right and right to create derivative works. The court denied Chapman's motion for summary judgment as to the distribution issue because there was a material dispute regarding who leaked the song. However, it granted Minaj's motion for partial summary judgment as to the derivative work right because Minaj's creation of the song constituted fair use. The court was unwilling to uproot the common practice within the music industry of experimenting with a song before seeking a license in light of copyright's constitutional purpose of promoting the progress of science and the useful arts. Furthermore, Minaj made no attempt to commercially exploit her song; rather, she chose to withhold it from her album. Finally, there was no evidence that Minaj's private experimentation with Chapman's work could have harmed the market for Chapman's work, so the court granted Minaj's motion for partial summary judgment. | Defendant's motion for summary judgment | Fair use | 9th | C.D. Cal. | Musical works | Musical composition |
| Rimini St. v. Oracle Int'l Corp., 473 F. Supp. 3d 1158 (D. Nev. 2020). | 09/14/20 | Rimini Street allegedly infringed Oracle's copyrights to its enterprise software by providing third-party updates to and support for the software. A jury found in Oracle's favor on the copyright infringement question, and the Ninth Circuit upheld the verdict in 2018. In an attempt to avoid further copyright infringement, Rimini Street began servicing clients' instances of Oracle's software either on clients' own computer systems or on a third-party server (not on Rimini's own servers). Rimini sued Oracle for declaratory judgment that its new business model did not violate Oracle's copyrights, and Oracle filed a counterclaim in which it alleged copyright infringement, inter alia. The Nevada District Court rejected Rimini's fair use defense. Rimini's use of Oracle's software was clearly commercial in nature, and Rimini's updates to the software were non-transformative because they "were ultimately implemented in the same PeopleSoft software as the original" which "works just as the original copyrighted software does." The second and third factors weighed in Oracle's favor because software products are at least somewhat creative and Rimini created exact RAM copies of Oracle's software, which were essential to the creation and functionality of the updates. The "effect on the market" factor also weighed in Oracle's favor because Rimini and Oracle are direct competitors in the aftermarket for software support. The court therefore granted Oracle's motion for partial summary judgment as to Rimini's defense of fair use. | Defendant's motion for summary judgment | Not fair use | 9th | D. Nev. | Literary works | Software |
| Schwartzwald v. Oath Inc., No. 19-CV-9938 (RA), 2020 U.S. Dist. LEXIS 165641 (S.D.N.Y. Sep. 10, 2020). | 09/10/20 | Plaintiff took a photograph of an actor walking down the street. Defendant cropped the photo, placed a text box over the actor's groin, and included the picture in an online article entitled 25 Things You Wish You Hadn't Learned in 2013 and Must Forget in 2014. The photo's caption discusses rumors about the actor's body in the context of a discussion of various news and entertainment stories from 2013. The district court found Defendant's use transformative because it "served the dual purpose of mocking both [the actor] and those who found the Photograph newsworthy in the first instance." The fact that Defendant superimposed a text box over the most relevant part of the photo, in the court's view, (a) made market harm unlikely and (b) added to the transformativeness of Defendant's use. The court also determined that paparazzi photos of this sort are more factual than creative in nature, and found it "unlikely that any potential purchasers of the Photograph would opt for Oath's version instead of the original." The court granted Defendant's motion to dismiss. (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Stross v. Hearst Communs., Inc., No. SA-18-CV-01039-JKP, 2020 U.S. Dist. LEXIS 161293 (W.D. Tex. Sep. 3, 2020). | 09/03/20 | Plaintiff sued Defendants for exceeding the scope of their license for Plaintiff's photographs of "tiny houses" on the Llano River in Texas. On Plaintiff's motion for summary judgment, the district court declined to evaluate fair use because there was a genuine dispute of material fact as to whether Defendants infringed Plaintiff's copyright in the first instance. | Defendant's motion for summary judgment | Fair use not determined | 5th | W.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Beom Su Lee v. Karaoke City, 2020 U.S. Dist. LEXIS 157834 (S.D.N.Y. Aug. 31, 2020). | 08/31/20 | Plaintiff sued Defendants for unauthorized use of Plaintiff's father's music at Defendants' karaoke bars. The district court denied Defendants' motion to dismiss on their fair use defense because Defendants merely argued that karaoke renditions of songs can constitute parody, and the pleadings do not establish whether the performances at issue were parodic in nature. | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Musical works | Musical composition |
| Backgrid USA, Inc. v. Euphoric Supply Inc., No. 3:20-cv-00914-BEN-BLM, 2020 U.S. Dist. LEXIS 154225 (S.D. Cal. Aug. 24, 2020). | 08/24/20 | Plaintiff alleged that Defendant used its photograph of Kanye West on packaging for its Kanye West action figure. Defendant moved to dismiss on fair use grounds, but the court denied the motion because Defendant's fair use argument depended on information not present in the complaint, such as the levels of creativity and transformativeness in Defendant's use and whether there was a market for Plaintiff's work. | Motion to dismiss | Fair use not determined | 9th | S.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Bain v. Film Indep., Inc., No. CV 18-4126 PA (JEMx), 2020 U.S. Dist. LEXIS 141859 (C.D. Cal. Aug. 6, 2020), aff'd, Bain v. Film Indep., Inc., No. 20-55948, 2022 WL 17592422 (9th Cir. Dec. 13, 2022). | 08/06/20 | An "acting reel" is fair use. Defendant, an actress, made a reel of clips from Plaintiff's film in which Defendant appeared and sent the reel to casting directors in search of further employment. Plaintiff sued Defendant for infringing her copyright in the film, and Defendant moved for summary judgment. The district court ruled that Defendant's reel served the transformative purpose of showcasing Defendant's acting abilities, utilized only the portions of the film necessary to achieve that purpose, and could not possibly have usurped the market for the film. Thus, the court granted Defendant's motion for summary judgment. The Ninth Circuit affirmed the district court's holding without comment in December 2022. | Defendant's motion for summary judgment | Fair use | 9th | C.D. Cal. | Motion pictures and other audiovisual works | Motion picture |
| Kobi Karp Architecture & Interior Design, Inc. v. O'Donnell Dannwolf & Partners Architects, Inc., Civil Action No. 19-24588-Civ-Scola, 2020 U.S. Dist. LEXIS 131909 (S.D. Fla. July 27, 2020). | 07/27/20 | The Surf Club hired Plaintiff to design a residential development. Plaintiff prepared the architectural drawings. After replacing Plaintiff with another architect, The Surf Club submitted altered versions of Plaintiff's drawings to the local government in order to obtain permission to begin construction. Plaintiff sued The Surf Club (and others) for copyright infringement and other causes of action. On Defendants' motion to dismiss, the district court declined to evaluate fair use. The court could not determine from the face of the complaint, for example, whether the drawings were creative or how Defendants altered the drawings. Thus, the court declined to dismiss the case on fair use grounds. | Motion to dismiss | Fair use not determined | 11th | S.D. Fla. | Architectural works | Architectural |
| Miller v. Suriel Grp., Inc., No. 19-24936-CIV, 2020 U.S. Dist. LEXIS 197832 (S.D. Fla. July 21, 2020). | 07/21/20 | Plaintiff alleged that Defendant infringed his copyrights to two photographs by posting the photos to their website. Defendant moved to dismiss on fair use grounds. The district court ruled that disposition of Defendant's fair use claims was inappropriate at the motion to dismiss stage given the court's limited access to facts and the court's "narrow inquiry" at that stage. (Ed. note: A Higbee & Associates case.) | Motion to dismiss | Fair use not determined | 11th | S.D. Fla. | Pictorial, graphic, and sculptural works | Photograph |
| Reilly v. Louder With Crowder, LLC, No. 3:20-CV-0395-S, 2020 U.S. Dist. LEXIS 125725 (N.D. Tex. July 16, 2020). | 07/16/20 | Defendant allegedly used Plaintiff's photo of a PETA protestor in an online article. Defendant moved to dismiss on fair use grounds, but the court denied the motion because the "potential market for or value of the Photograph cannot be evaluated from the face of Plaintiff's Complaint." (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Fair use not determined | 5th | N.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Bell v. Worthington City Sch. Dist., No. 2:18-cv-961, 2020 U.S. Dist. LEXIS 96424 (S.D. Ohio June 2, 2020). | 06/02/20 | A football coach shared a passage from Plaintiff's book on his team's website; another member of the same coaching staff retweeted the passage. Plaintiff sued the coaches' employer, a school district, for copyright infringement. The district court found that the "purpose and character" factor favored Defendant because the coaches' only purpose in using the passage "which discusses the effort it takes to be a winner" was to educate their players; thus, though the passage was not transformative use, it was an educational use. Furthermore, Plaintiff could point to no evidence of market harm for the book from which the passage was taken, so the court granted Defendant's motion for summary judgment. | Defendant's motion for summary judgment | Fair use | 6th | S.D. Ohio | Literary works | Book |
| McGucken v. Newsweek LLC, 464 F. Supp. 3d 594 (S.D.N.Y. 2020). | 06/01/20 | Defendant Newsweek embedded Plaintiff's Instagram photo in an article using Instagram's API, and Plaintiff sued for copyright infringement. The court rejected Defendant's fair use argument since Defendant's use was plainly non-transformative and could serve as a market substitute for Plaintiff's photo; citing Barcroft Media, Ltd. v. Coed Media Group, the court distinguished between this case and those in which "the photograph itself is the subject of the story." (Ed. note: one of several recent cases that have grappled with news articles reporting on or embedding Instagram posts.) | Motion to dismiss | Fair use not determined | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Noland v. Janssen, No. 17-CV-5452 (JPO), 2020 U.S. Dist. LEXIS 95454 (S.D.N.Y. June 1, 2020). | 06/01/20 | Plaintiff, an American sculptor, sued Defendant, a German art collector, under VARA and the Copyright Act after Defendant restored a sculpture he purchased from Plaintiff in 1990. Defendant's restoration efforts took place in Germany and the Copyright Act does not apply extraterritorially absent a domestic "predicate act," so Plaintiff argued that Defendant violated the Copyright Act by distributing photos and plans of the sculpture in the U.S. in connection with an attempted sale. The court rejected Plaintiff's argument on fair use grounds. The court found the use transformative because Defendant's photos and plans were not offered for their artistic value, but in furtherance of a sale. Likewise, the photos and plans in no way usurped the market for the sculpture. Thus, the court granted Defendant's motion to dismiss. | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Sculpture |
| Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570 (S.D.N.Y. 2020). | 06/01/20 | Defendant, an online magazine, embedded Plaintiff's Instagram post in an article. The post included a picture of Cardi B taken by Plaintiff, and Plaintiff sued for copyright infringement. The district court found Defendant's use transformative because the subject of the article was the Instagram post itself""not the photo featured in the post""and the post was included in the article for news reporting purposes. Similarly, the court found it implausible that Defendant's use of the photo could serve as a market substitute since the photo only appeared in the article as part of Plaintiff's post. Thus, the court granted Defendant's motion to dismiss. On 9/30/2021, the court declined to reconsider its holding, see Walsh v. Townsquare Media, Inc., No. 19-cv-4958 (VSB), 2021 U.S. Dist. LEXIS 188466 (S.D.N.Y. Sep. 30, 2021). (Ed. note: one of several recent cases that have grappled with news articles reporting on or embedding Instagram posts.) (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Johnson v. Fla. State Golf Ass'n, No. 8:19-cv-3202-T-60AEP, 2020 U.S. Dist. LEXIS 93163 (M.D. Fla. May 28, 2020). | 05/28/20 | Defendant posted Plaintiff's golf photo on its website without authorization. Defendant moved to dismiss the complaint on fair use grounds, but the district court denied the motion because the "facts necessary to make the [fair use] determination [we]re [not] evident on the face of the complaint." (Ed. note: A Higbee and Associates case.) | Motion to dismiss | Fair use not determined | 11th | M.D. Fla. | Pictorial, graphic, and sculptural works | Photograph |
| Int'l Code Council, Inc. v. UpCodes, Inc., 2020 U.S. Dist. LEXIS 92324 (S.D.N.Y. May 26, 2020). | 05/26/20 | Defendant posted Plaintiff's model building codes on its website in two formats: (1) as adopted by various state and local governments, and (2) "redlined" to the adopted regulations. Plaintiff sued for copyright infringement. The district court ruled that Defendant's use of the as-adopted codes constituted fair use. Even though Defendant did not transform the codes themselves, its purpose "to educate the public" was transformative, and the information communicated was factual. As to the redlined codes, however, the court declined to find fair use as a matter of law since there was a factual dispute regarding whether they served as market substitutes for Plaintiff's model codes. | Defendant's motion for summary judgment | Mixed result (some fair use) | 2d | S.D.N.Y. | Literary works | Legal rules and standards |
| Bassett v. Jensen, 459 F. Supp. 3d 293 (D. Mass. 2020). | 05/11/20 | Plaintiff rented her home to Defendant, who produced pornographic films in the home without Plaintiff's knowledge or consent. Plaintiff's artwork, which decorated the house, appeared in Defendant's films, so Plaintiff sued for copyright infringement. The court denied Defendant's motion for summary judgment on fair use""even though Plaintiff admitted there was no market for her artwork""holding that Defendant's use was non-transformative, Plaintiff's works were creative, and Defendant used some of the works in their entirety. | Defendant's motion for summary judgment | Fair use not determined | 1st | D. Mass. | Pictorial, graphic, and sculptural works | Art |
| Delano v. Rowland Network Communs. LLC, No. CV-19-02811-PHX-MTL, 2020 U.S. Dist. LEXIS 81374 (D. Ariz. May 8, 2020). | 05/08/20 | Plaintiff sued Defendant for copyright infringement, alleging that Defendant used Plaintiff's photo of the U.S.-Mexico border without permission. The district court declined to analyze fair use at the motion to dismiss stage since basic issues of fact were in dispute, such as whether Defendant posted a "very small cropped amount" of the photo or a "full color and full-scale" version of the photo. (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Fair use not determined | 9th | D. Ariz. | Pictorial, graphic, and sculptural works | Photograph |
| Werner v. Evolve Media, LLC, No. 2:18-cv-7188-VAP-SKx, 2020 U.S. Dist. LEXIS 106477 (C.D. Cal. Apr. 28, 2020) | 04/28/20 | Defendant used Plaintiff's animal photos in an online article without permission. The district court granted Plaintiff's motion for summary judgment, finding that it was "undisputed that Defendants exploited the works commercially, derived financial benefit from displaying them on their websites, and did not "'transform' the works in any way." (Ed. note: a Higbee and Associates case). | Plaintiff's motion for summary judgment | Not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Harbus v. Manhattan Inst. for Policy Research, Inc., 2020 U.S. Dist. LEXIS 74568 (S.D.N.Y. Apr. 27, 2020). | 04/27/20 | The New York Post licensed Plaintiff's photograph of Andrew Cuomo for use in conjunction with an article. Defendant, a think tank, noted the article's publication in a post on its website, which featured a darkened and heavily cropped version of Plaintiff's photo overlaid with text. The district court granted Defendant's motion to dismiss because Defendant substantially transformed the photo, Defendant used the photo in conjunction with research and educational efforts and is a non-profit organization, and Defendant's cropped version of the photo could not have harmed the market for Plaintiff's photo. (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Wild v. Rockwell Labs, No. 4:19-CV-00919-W-RK, 2020 U.S. Dist. LEXIS 68761 (W.D. Mo. Apr. 20, 2020). | 04/20/20 | Defendant pest control company used Plaintiff entomologist's wildlife photos on its website without permission. The district court denied Defendant's motion to dismiss because Defendant's fair use arguments relied on factual "matters . . . not within the four corners of the Complaint," such as Defendant's online sales revenue. | Motion to dismiss | Fair use not determined | 8th | W.D. Mo. | Pictorial, graphic, and sculptural works | Photograph |
| Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d 333 (S.D.N.Y. 2020). | 03/26/20 | Defendant 2K Games publishes video games that feature realistic depictions of NBA players, including their tattoos. Plaintiff owned the exclusive right to license several tattoos that appeared in the games and sued for copyright infringement. In granting Defendant's motion for summary judgment, the court emphasized the transformative nature of Defendant's use: Defendant only included the tattoos in the games to accurately portray the players ("general recognizability" and not for "the [p]layers to express themselves through body art"), the tattoos make up a tiny fraction of the games, and the tattoos were not included in the games for commercial reasons. The court also noted that the tattoos' appearances in video games cannot serve as substitutes for their use in any other media. | Defendant's motion for summary judgment | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Tattoo |
| Tresona Multimedia, Ltd. Liab. Co. v. Burbank High Sch. Vocal Music Ass'n, 953 F.3d 638 (9th Cir. 2020). | 03/24/20 | A high school show choir sang twenty seconds of a song to which Plaintiff owned a copyright interest as part of an eighteen-minute show piece that reworked pieces from multiple songs to tell a story of a local Dust Bowl-era community ravaged by drought. In granting Defendants' motion for summary judgment, the Ninth Circuit found that defendants' use was both highly transformative and rooted in an educational purpose. The court also found that the transformative nature of defendants' arrangement dampened its ability to serve as a market substitute, especially considering the fact that defendants only used the song's chorus. | Defendant's motion for summary judgment | Fair use | 9th | 9th Cir. | Musical works | Musical composition |
| Cruz v. Cox Media Grp., LLC, 444 F. Supp. 3d 457 (E.D.N.Y. 2020). | 03/13/20 | Defendant included Plaintiff's photograph of an arrest in an online news article without permission. The district court granted Plaintiff's motion for summary judgment because Defendant used the entire photo in a non-transformative manner and usurped the market for the photo. The court distinguished situations in which a work is included in a news report about the work (which supports a finding of fair use) from those in which a work is used merely to further inform a news report (as was the case here). (Ed. note: a Richard Liebowitz case) | Plaintiff's motion for summary judgment | Not fair use | 2d | E.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Cambridge Univ. v. Becker, 446 F. Supp. 3d 1145 (N.D. Ga. 2020). | 03/02/20 | On remand from the Eleventh Circuit, the district court in this long-running case about fair use of educational resources once again reformulated its approach to evaluating fair use with respect to a university's unauthorized use of portions of published works for educational purposes. As instructed by the Eleventh Circuit, the district court eschewed its previously-employed quantitative approach to fair use in favor of a more holistic analysis and afforded the fourth factor, "the effect on the potential market for the copyrighted work," more weight. The court ultimately found that the university made fair use of all but eleven of the forty-eight materials in question. | Other | Mixed result (some fair use) | 11th | N.D. Ga | Literary works | Educational materials |
| In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875 (N.D. Cal. 2020). | 03/02/20 | An anonymous Reddit user, a lifelong Jehovah's Witness, posted two images critical of Watchtower, a publishing organization for Jehovah's Witnesses, on Reddit. Watchtower subpoenaed Reddit under § 512(h) of the DMCA in order to obtain the user's identity, and the Electronic Frontier Foundation moved to quash the subpoena on the user's behalf, as the user may have been ostracized from his religious community had his identity been revealed. After a magistrate judge denied the motion to quash, the Northern District of California, reviewing de novo, granted the motion because the Reddit user's use of the two images in question""an advertisement and a chart, each created by Watchtower""was protected by the fair use doctrine. Most importantly, the court found that (1) the use was transformative since the images were used to criticize Watchtower, and (2) there was no evidence of a market for either the ad or the chart, and both were distributed for free. Thus, the use was protected by fair use and the district court granted the motion to quash. The court declined to undertake a sustained First Amendment analysis, reasoning that "to tackle broad online speech issues" is unnecessary "when an analysis under copyright law and fair use will do." The court also ruled that its fair use determination was sufficient to quash the subpoena, because "fair use is not a mere defense to copyright infringement, but rather is a use that is not infringing at all"; therefore, the original justification for the subpoena""to discover the target's identity as an alleged copyright infringer""did not exist. | Discovery Request | Fair use | 9th | N.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Morris v. Wise, No. 1:19 CV 2467, 2020 U.S. Dist. LEXIS 35744 (N.D. Ohio Mar. 2, 2020). | 03/02/20 | Defendant published a video on YouTube criticizing Plaintiff's business practices. Plaintiff sued Defendant for copyright infringement (among other things) since Defendant used a picture of Plaintiff in his video's thumbnail without permission. The district court granted Defendant's motion to dismiss since all four factors weighed in Defendant's favor: Defendant transformed the picture by adding text, the picture was of a public figure and was used to criticize that figure, and there was no market for the picture. | Motion to dismiss | Fair use | 6th | N.D. Ohio | Pictorial, graphic, and sculptural works | Photograph |
| Estate of Smith v. Graham, 799 Fed. Appx. 36 (2d Cir. 2020). | 02/03/20 | Drake sampled a song from Jimmy Smith in his song "Pound Cake." Jimmy Smith's estate sued, and Drake claimed that his sampling constituted fair use, as he was criticizing the message of Jimmy Smith's song. The court found the use transformative since Drake used the copyrighted work for a purpose, or imbued it with a character, different from that for which it was created. The "nature of the copyrighted work" factor was of limited usefulness since the song was used for a transformative purpose. The amount used was reasonable in relation to the purpose of the copying, the two songs appealed to very different audiences, and there was no evidence of the existence of an active market for the Jimmy Smith song, "which is vital for defeating Defendants' fair use defense." The Second Circuit affirmed the district court's grant of summary judgment to Defendants. (Ed. note: In 2019, the IPAT Clinic co-authored an amicus brief in this case on behalf of a group of intellectual property law professors. Brief for Intellectual Property Professors as Amici Curiae Supporting Appellees, Estate of James Oscar Smith v. Aubrey Drake Graham, 799 Fed. Appx. 36 (2020) (No. 19-0028).) | Defendant's motion for summary judgment | Fair use | 2d | 2d Cir. | Musical works | Musical composition |
| Hughes v. Benjamin, 437 F. Supp. 3d 382 (S.D.N.Y. 2020). | 02/03/20 | Plaintiff posted a video on YouTube of her reaction to Hillary Clinton losing the 2016 Presidential Election. Soon thereafter, Defendant posted a YouTube video that incorporated approximately one minute and thirty seconds of Plaintiff's video and criticized it, calling her a "social justice warrior" with a "lack of awareness." The court determined that Benjamin's use constituted fair use. The court determined that Defendant's use was transformative since he criticized the video Plaintiff posted. As for the second factor, the court found Plaintiff's video "factual and informational" but also "expressive and creative" as it provides a first-hand account of a newsworthy event as well as commentary. Next, the court noted that while Benjamin copied a large percentage of the video, the clips copied were "critical" to his video's purpose and that he copied as much of Plaintiff's video "as was deemed reasonably necessary for him to convey his critical message." Lastly, the court determined that the markets for the videos were not the same. The court granted Defendant's motion to dismiss. | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Comerica Bank & Tr., N.A. v. Habib, 433 F. Supp. 3d 79 (D. Mass. 2020). | 01/06/20 | Defendant went to multiple Prince concerts and recorded parts of the performances. Habib uploaded his recorded videos to YouTube, and Comerica alerted YouTube of the copyright infringement. Habib claimed fair use, and Comerica sued. The court found that Habib's videos did not fall under the fair use doctrine. The videos were not transformative, as he did not "add any new meaning or expression to the underlying works." Habib stood to gain traffic to his YouTube channel, and although his videos were not monetized, that is not a requirement under the fair use doctrine. Prince's songs and performances are highly creative works that fall within the heart of the Copyright Act. The court also determined that the videos showed the heart of Prince's works""i.e., the best parts of the performances. Lastly, Comerica and the Prince Estate lose revenue when unauthorized Prince videos are posted online. | Plaintiff's motion for summary judgment | Not fair use | 1st | D. Mass. | Motion pictures and other audiovisual works | Motion picture |
| Pierson v. DoStuff Media, LLC, No. A-19-CV-00435-LY, 2019 U.S. Dist. LEXIS 188020 (W.D. Tex. Oct. 29, 2019). | 10/29/19 | Defendant allegedly posted Plaintiff's photographs of the band Lotus Land on their website. The court denied Defendant's motion to dismiss because Defendant simply reposted the photos in their entirety without any transformation. The court declined to find a difference between Plaintiff's stated purpose, "showing musicians in performance," and Defendant's declared purpose to "inform the public about an upcoming music event." Instead, the court held that the purposes for the Defendant's use and the Plaintiff's were the same, which was "to show the Lotus Land band members performing their music." Update: on 3/21/21, the court denied plaintiff's motion for summary judgment as to fair use.. Plaintiff argued that because defendant was unable to provide sufficent facts for a motion to dismiss, summary judgment should be granted. The court held that as the standards for summary judgment are different from those of a motion to dismiss, plaintiff's argument was insufficient for summary judgment on fair use. See Pierson v. DoStuff Media, LLC, No. 1:19"“CV"“435"“DAE, 2021 WL 2772810 (W.D. Tex. Mar. 17, 2021). (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Not fair use | 5th | W.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Viper- Nurburgring Record LLC v. Robbins Motor Co. LLC, No. 5:18-cv-04025-HLT, 2019 U.S. Dist. LEXIS 152931 (D. Kan. Sep. 9, 2019). | 09/09/19 | Defendants entered into a contract with Plaintiff which licensed a license to use one photograph from a world-record attempt on a race track; Plaintiff asserted that Defendants' use exceeded the scope of the license. The court found that Defendants used Plaintiff's photos for commercial purposes (e.g., by posting them on a website and Facebook page), and granted summary judgment as to fair use. The court did not undertake a transformative use analysis. | Defendant's motion for summary judgment | Not fair use | 10th | D. Kan. | Pictorial, graphic, and sculptural works | Photograph |
| Oyewole v. Ora, 776 F. App'x 42 (2d Cir. 2019). | 09/04/19 | The Second Circuit affirmed "without further analysis" the lower court's determination that The Notorious B.I.G.'s use of the phrase "party and bullshit" (originally used by a spoken word poetry group) in a song constituted fair use. See Oyewole v. Ora, 291 F. Supp. 3d 422, 2018 U.S. Dist. LEXIS 39139 (S.D.N.Y., Mar. 7, 2018). | Defendant's motion for summary judgment; Motion to dismiss | Fair use | 2d | 2d Cir. | Literary works | Poetry |
| Dlugolecki v. Poppel, No. CV 18-3905-GW(GJSx), 2019 U.S. Dist. LEXIS 149404 (C.D. Cal. Aug. 22, 2019). | 08/22/19 | Defendant took Meghan Markle's middle and high school photographs, which ABC obtained from yearbooks and broadcasted. During the six broadcasts, which included a total eight hours of broadcast time, ABC displayed the photos for a total of 49 seconds. The court was unable to conclude that any of the four factors clearly favored fair use. It held that the use was transformative, though not significantly in its estimation. The photos were not critical to the underlying story, and ABC had a commercial purpose in using the photos given that it used them in promotions of its coverage. Further, the amount of creativity present in yearbook photos is limited, but nonzero. Lastly, the court found that ABC usurped the market for Dlugolecki's photos by publishing them without a license. (Ed. note: the purpose and character of the use of a purely documentary yearbook photo from decades ago could hardly be more different than the photo's use in a news story to provide historical context. This case is an outlier in fair use case law.) | Defendant's motion for summary judgment | Not fair use | 9th | C.D. Cal. | Pictorial, graphic, and sculptural works | Photograph |
| Cancian v. Hannabass & Rowe Ltd.Cancian v. Hannabass & Rowe, Ltd., Civil Action No. 7:18-cv-00283, 2019 U.S. Dist. LEXIS 121112 (W.D. Va. July 19, 2019). | 07/19/19 | Cancian took a photo of a summer road with trees on either side, which he edited and posted on his website. Hannabass is a body repair corporation, and contracted with Stinson Communications to build their website. Stinson owns a variety of stock images and they put the photo on Hannabass's website. The court found that fair use did not apply in this situation. The court found little, if any, transformative value in the use of the photo on Hannabass' website because the photo was not necessary to provide historical accuracy to the article. The court found that the second factor weighed in favor of fair use, as Defendants were using the photo to depict a road in fall; the third factor weighed against fair use since the photo was reproduced in its entirety. The final factor weighed against a finding of fair use, as "Cancian is a commercial photographer who engages in the licensing of photographs for profit." | Defendant's motion for summary judgment | Not fair use | 4th | W.D. Va. | Pictorial, graphic, and sculptural works | Photograph |
| Oppenheimer v. Kenney, No. 1:18-cv-00252-MR, 2019 U.S. Dist. LEXIS 115066 (W.D.N.C. July 10, 2019). | 07/10/19 | Defendant allegedly took Plaintiff's photographs and posted them on his non-commercial, informational blog. The court denied Defendant's 12(b)(6) motion because fair use is a fact-intensive question. (Ed. note: David Oppenheimer case.) | Motion to dismiss | Fair use not determined | 4th | W.D.N.C. | Pictorial, graphic, and sculptural works | Photograph |
| Tylor v. Hawaiian Springs, LLC, No. 17-00290 HG-KJM, 2019 U.S. Dist. LEXIS 111726 (D. Haw. July 3, 2019). | 07/03/19 | Plaintiff, a professional photographer, sued Defendant, a bottled water company, for re-pinning his picture on Defendant's Pinterest page. The picture was used in a mock advertisement for Defendant made by a non-party for a college course, which was pinned to the non-party's Pinterest page. The court granted Plaintiff's motion for partial summary judgment as to Defendant's fair use defense, holding that none of the four factors supported Defendant's fair use argument. | Plaintiff's motion for summary judgment | Not fair use | 9th | D. Haw. | Pictorial, graphic, and sculptural works | Photograph |
| Stross v. Stone Textile, No. 1:18-CV-454-RP, 2019 U.S. Dist. LEXIS 149424 (W.D. Tex. June 27, 2019). | 06/27/19 | Defendant, a textile company, posted Plaintiff's photo of a house on its blog with analysis on how environmental protection was incorporated into the house's renovation. The court denied Defendant's motion for summary judgment because issues of material fact existed, including whether the use was transformative and whether it was a commercial use. | Defendant's motion for summary judgment | Fair use not determined | 5th | W.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Beom Su Lee v. Roku Karaoke, No. 18-cv-8633-KM-SCM, 2019 U.S. Dist. LEXIS 102988 (D.N.J. June 19, 2019). | 06/19/19 | Defendants allegedly used Plaintiff's copyrighted material in their karaoke bars. The court denied Defendants' motion to dismiss on fair use grounds because where "[a] performance for public entertainment has been plausibly alleged; the court cannot simply assume an educational or satirical use of the material." The court noted that defendants merely suggested that customers participate in karaoke "to improve their voice" and to engage in parodies. A performance for public entertainment has been plausibly alleged; the court cannot simply assume an educational or satirical use of the material." The court denied the motion to dismiss on the basis that "the pertinent facts and considerations that might support a claim of fair use are not apparent from the face of the complaint." | Motion to dismiss | Not fair use | 3d | D.N.J. | Musical works | Musical composition |
| Red Label Music Publ'g, Inc. v. Chila Prods., 388 F. Supp. 3d 975 (N.D. Ill. 2019). | 05/30/19 | Defendant made a documentary about the 1985 Chicago Bears and included clips of the team's "Super Bowl Shuffle" music video (sixteen video clips totaling fifty-nine seconds; eight seconds of audio). Plaintiff owns the rights to the video and sued for copyright infringement. As to the first factor, the court recognized that the documentary's purpose (to tell the story of the '85 Bears) differed from the music video's purposes (to entertain and raise money for charity). The video was reasonable to include in the documentary because it was one of the "guidepost[s]" of the Bears' season. "The purpose and character of the documentary is to comment on the sport-social phenomenon that was the 1985 Chicago Bears. This kind of historical commentary that documentary filmmakers often produce adds something new to a music video that was originally intended to entertain and raise money." The court found the second factor "largely neutral" because the filmmakers used the clips for historical, rather than creative, reasons. Next, the court held that the third factor favored fair use because the filmmakers used just eight seconds of the song's audio and 59 seconds of the video: two percent and seventeen percent, respectively; plus, the video made up only one percent of the documentary. As to the fourth factor, the court noted that no one would decline to purchase or license the music video because a fraction of it appeared in a documentary. Thus, the court granted Defendant's motion for summary judgment. | Defendant's motion for summary judgment | Fair use | 7th | N.D. Ill. | Motion pictures and other audiovisual works | Motion picture |
| Shirman v. WHEC-TV, LLC, No. 18-CV-6508-FPG, 2019 U.S. Dist. LEXIS 83767 (W.D.N.Y. May 17, 2019). | 05/17/19 | Plaintiff made a video about secondary students "voting" for the first time in a mock election. Defendant news station used a clip from the video in a news story; Defendant moved to dismiss on fair use grounds. The court analyzed the transformativeness factor with reference to two Ninth Circuit cases: L.A. News Serv. v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997), and L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924 (9th Cir. 2002). The court could not find as a matter of law that Defendant's use of the clip was transformative. Although Defendant argued it used the clip to communicate a message distinct from Plaintiff's original message, that was not the only possible inference. The second factor weighed in Defendant's favor since Plaintiff's video primarily communicated factual information. The "amount/substantiality used" factor was difficult to evaluate due to disagreements over the message of Defendant's video but weighed against Defendant because most of the news segment used video and/or audio from Plaintiff's video. The "effect upon the potential market" factor was also unclear because widespread use of Plaintiff's video could destroy the market for the video. Thus, the court denied Defendant's motion to dismiss. (Ed. note: a Richard Liebowitz case) | Motion to dismiss | Fair use not determined | 2d | W.D.N.Y. | Motion pictures and other audiovisual works | Motion picture |
| Furie v. Infowars, LLC, 401 F. Supp. 3d 952 (C.D. Cal. 2019). | 05/16/19 | Plaintiff Furie created a comic book character named Pepe the Frog that became a popular internet meme. Defendant created a "Make America Great Again" poster, which was a collage of politically relevant figures and included Pepe's head and listed the poster for sale on its website. The court denied Defendant's motion for summary judgment because there were many factual disputes. The court noted that for the use to be transformative it customarily needed to comment on the author's work. As for the nature of the copyrighted work, the court disagreed that Pepe the Frog's "meme-ification" weighed in favor of fair use, as Furie's original creation and depiction of Pepe, and his subsequent creation of "Pepe in Blue Shirt," fall within the core of copyright protection. Next, the court evaluated the amount of work used and found that there were too many disputed issues of fact for this factor to weigh in either direction. Lastly, the court looked at the effect of use on the market and determined that the factor did not weigh against or for fair use since there was conflicting evidence. | Defendant's motion for summary judgment | Fair use not determined | 9th | C.D. Cal. | Literary works; Pictorial, graphic, and sculptural works | Comic; Character |
| Bell v. Magna Times, LLC, No. 2:18CV497DAK, 2019 U.S. Dist. LEXIS 72750 (D. Utah Apr. 29, 2019). | 04/29/19 | Dr. Keith Bell is a poet and author of a book. The Magna Times published a part of Dr. Bell's book known as the "WIN passage" after a local football coach used it in a speech. Bell argued that Defendants could not move to dismiss on fair use grounds because they had not raised the fair use doctrine in their Answer. The Court allowed the Defendants to continue with their motion to dismiss. The court then moved to the question of whether publishing the "WIN passage" in their newspaper violated Dr. Bell's copyright. The court concluded that such use was fair use, as "there is no allegation that the football coach's use of the quote was anything but fair use in the education of his student athletes. The news reporting of that fair use was similarly not attempting to capitalize on the quote." The court determined that the other factors also favored fair use, and granted Defendants' motion to dismiss. | Motion to dismiss | Fair use | 10th | D. Utah | Literary works | Book |
| Brammer v. Violent Hues Prods., LLC, 922 F.3d 255 (4th Cir. 2019). | 04/26/19 | Violent Hues Productions, which holds a film festival in Washington, D.C., used a cropped version of Brammer's photograph of the Adams Morgan neighborhood on its website without permission or paying for a license. The district court granted summary judgment to Violent Hues on fair use grounds. The Fourth Circuit reversed. The court determined that it was not transformative to crop a photo by what it characterized as simply removing negative space. The court highlighted possible "documentary" uses, which it noted "may be important to the accurate representations of historical events. These representations often have scholarly, biographical, or journalistic value., and are frequently accompanied by commentary on the copyrighted work itself," and as "raw material for new technological functions." It found that Defendant did neither here. The court also found that Defendant is a commercial enterprise and a commercial market exists for stock imagery. Finally, the court held that Defendant's claim of good faith did not help its fair use defense, and the district court clearly erred by finding otherwise. | Defendant's motion for summary judgment | Not fair use | 4th | 4th Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Philpot v. WOS, Inc., No. 1:18-CV-339-RP, 2019 U.S. Dist. LEXIS 67978 (W.D. Tex. Apr. 22, 2019). | 04/22/19 | Defendant allegedly used Plaintiff's photos in their news articles without attribution and in violation of a Creative Commons license after Plaintiff had uploaded the documents to Wikimedia Commons. The court declined to grant Defendant's motion for summary judgment on fair use grounds holding that disagreement as to how to characterize each party's use of the photos is a fact issue for a jury. The court also found that because Philpot only seeks attribution for his work and doesn't generally expect or receive payment, there was no evidence that Defendant's use would have any effect on the market for Plaintiff's photos, and thus the market factor weighed decisively in Defendant's favor. Nevertheless, the court held that there existed genuine issues of material fact that would preclude a jury trial. | Defendant's motion for summary judgment | Not fair use | 5th | W.D. Tex. | Pictorial, graphic, and sculptural works | Photograph |
| Clark v. Transp. Alts., No. 18 Civ. 9985 (VM), 2019 U.S. Dist. LEXIS 46274 (S.D.N.Y. Mar. 18, 2019). | 03/18/19 | Clark owns a photo of a dockless bike parked at the edge of a sidewalk. TransAlt provided a photo of a New York Post article that was "cropped such that it shows only the Post Article's headline, author byline, the Photograph, and Clark's photographer credit." The court determined that TransAlt's use of the photo fell within the fair use doctrine. In applying the four factors, the court determined that the first and fourth factors weighed in favor of fair use; importantly, TransAlt used the image of the Post article to critique and comment on the Post's use of Plaintiff's photo, as it contradicted the point the Post attempted to convey in its article. The court found that the second and third factors cut against fair use since the photo was creative and TransAlt replicated the entire photo but concluded "that the use of the entire Photograph was "'reasonable in relation to the purpose of the copying.'" (Ed. note: a Richard Liebowitz case.) | Motion to dismiss | Fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723 (9th Cir. 2019). | 03/15/19 | Zillow is an online real estate marketplace and has thousands of photographs of the properties listed on its website. Thousands of these copyrighted photos come from VHT, the largest professional real estate photography studio in the country. Zillow uses VHT's photos on two parts of their websites: the "Listing Platform" and "Digs." The fair use component of the case focused solely on the Digs photos; Digs is a search engine that allows users to search the Zillow database by various criteria such as room type, style, cost, and color. The court held that the label "search engine" is not a talismanic term that serves as an on-off switch as to fair use, and focused on the importance of considering the details and function of a website's operation in making a fair use determination. The issue with Zillow's Digs was that the search results did not direct users to the original sources of the photos (VHT's website). Rather, they linked to other pages within Zillow's website and, in some cases, to third-party merchants that sold items similar to those featured in the photo. Further, Digs displayed VHT images in their entirety, not merely thumbnails, and the photos as displayed on Zillow served the same functions as the originals. Thus, the Ninth Circuit affirmed the district court's grant of summary judgment in favor of VHT as to fair use. | Plaintiff's motion for summary judgment | Not fair use | 9th | 9th Cir. | Pictorial, graphic, and sculptural works | Photograph |
| Sands v. CBS Interactive Inc., No. 18-cv-7345 (JSR), 2019 U.S. Dist. LEXIS 46260 (S.D.N.Y. Mar. 13, 2019). | 03/13/19 | Defendant CBSi used Plaintiff's photos of the set of a television show (which was being filmed in a public location) in an online article without permission. The court quickly dismissed Defendant's motion for summary judgment on fair use since all four factors patently weighed in Plaintiff's favor. (Ed. note: a Richard Liebowitz case. This is one of three fair use opinions since the beginning of 2019 we have found that referred to improper conduct by the Liebowitz Law Firm, headed by Richard Liebowitz. In this case, in denying Plaintiff's motion for attorney's fees the court cited McDermott v. Monday, LLC, No. 17-cv-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, 2018 WL 5312903, at *2-3 (S.D.N.Y. Oct. 26, 2018) , and described that case in a parenthetical as "detailing the Liebowitz Law Firm's history of questionable litigation practices and holding that 'it is undisputable that Mr. Liebowitz is a copyright troll.'" | Defendant's motion for summary judgment | Not fair use | 2d | S.D.N.Y. | Pictorial, graphic, and sculptural works | Photograph |
| Peterman v. Republican Nat'l Comm., 369 F. Supp. 3d 1053 (D. Mont. 2019). | 02/22/19 | Defendant (the Republican National Committee) used Plaintiff's photos of a Democratic politician in various mailers without permission. First, the court found Defendant's use transformative because "the placement of the image in the mailer" along with graphical elements "changed the function and meaning of the Work by connoting a critical message not inherent to the Work itself." The court also held that political purposes are distinct from commercial purposes. Next, the court ruled that the second factor did not weigh in favor of either party: on one hand, Plaintiff's photo was published, but on the other hand, the photo featured creative elements. The third factor weighed against fair use because Defendant used virtually the entire photo. Finally, the court determined that Defendant did not interfere with Plaintiff's ability to profit from her photo. Plaintiff was paid $500 for photographing the event in question, and the court could not conceive of a future commercial use for the photo. Thus, the fourth and most important factor weighed in favor of fair use, and the court granted Defendant's motion for summary judgment. | Defendant's motion for summary judgment | Fair use | 9th | D. Mont. | Pictorial, graphic, and sculptural works | Photograph |
| May v. Sony Music Entm't, 399 F. Supp. 3d 169 (S.D.N.Y. Feb. 13, 2019). | 02/13/19 | Plaintiff alleged that Defendant Miley Cyrus infringed his copyright by including the phrase "We run things / Things don't run we" in her 2013 hit "We Can't Stop." Plaintiff had published a song in 1988 (entitled "We Run Things") that featured the same lyric several times throughout the song. The magistrate judge first found Defendant's work transformative. Although Defendant used the lyric in the same expressive medium (i.e., music) as Plaintiff, the lyrics were "strikingly different in tone and message": Cyrus's song was a message of female empowerment, while Plaintiff's song subjugated women. Furthermore, the lyric was featured much less prominently in Cyrus's song. Thus, the first factor favored fair use. The second factor, on the other hand, did not favor fair use since Plaintiff's song was unequivocally creative. Next, the court held that, in order to be accurately assessed, the third factor required additional factual development regarding "what Defendants sought to accomplish and how they did so." The court also thought the fourth factor required more facts since it was unclear whether there could have been a "market" for Plaintiff's work. Due to the various aforementioned factual deficiencies, the magistrate recommended denying Defendant's motion for summary judgment despite holding that "analysis of the relevant factors strongly indicates that Defendants' use of the Phrase is a fair use." | Defendant's motion for summary judgment | Fair use not determined | 2d | S.D.N.Y. | Musical works | Musical composition |