Since February 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.
Last February, 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. At that time, we logged 39 opinions discussing fair use in 2022 and early 2023, a decrease from 64 in 2021, 45 in 2020, and 22 in 2019. Look for another update and more analysis soon!
Last database update: April 24, 2023
Case Name | Date Decided | Abstract | Resolution | Procedural Posture | Circuit | Court | Type of Copyrighted Work |
---|---|---|---|---|---|---|---|
Canadian Standards Ass'n v. P.S. Knight Co., No. 1:20-CV-1160-DAE, 2023 WL 1769832 (W.D. Tex. Jan. 4, 2023). | 2023-01-04 | 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. | Not fair use. | Defendant's motion for summary judgment as to fair use denied. Plaintiff's motion for summary judgment granted. | 5th | W.D. Tex. | Standards (Literary) |
Kipp Flores Architects, LLC v. Pradera SFR, LLC, No. SA-21-CV-00673-XR, 2023 WL 28723 (W.D. Tex. Jan. 2, 2023). | 2023-01-02 | 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. | Fair use not determined. | Plaintiff's motion for partial summary judgment denied. | 5th | W.D. Tex. | Architectural |
Bell v. Milwaukee Bd. of Sch. Directors, No. 22-C-0227, 2022 WL 18276966 (E.D. Wis. Dec. 21, 2022). | 2022-12-21 | 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. | Fair use. | Defendant's motion to dismiss granted. | 7th | E.D. Wis. | Book (Literary) |
Green v. United States Dep't of Just., 54 F.4th 738 (D.C. Cir. 2022). | 2022-12-06 | 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. The court held that it lacked subject matter jurisdiction over the facial challenge, computer scientists lacked the standing necessary to obtain a preliminary injunction, and that plaintiffs' as-applied challenge failed because the DMCA was content-neutral and it did not violate the First Amendment. 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 Second Circuit did not reach that issue. | Fair use not determined. | Appeal. Denial of motion for preliminary injunction affirmed. | D.C. | D.C. Cir. | Software (Literary) |
Auslander v. Tredyffrin/Easttown Sch. Dist., No. CV 22-1425, 2022 WL 17418625 (E.D. Pa. Dec. 5, 2022). | 2022-12-05 | 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." | Fair use not determined. | Defendant's motion for summary judgment granted. | 3d | E.D. Pa. | Literary |
Westwood v. Brott, No. 22-CV-03374-CRB, 2022 WL 17418975 (N.D. Cal. Dec. 5, 2022). | 2022-12-05 | 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." | Fair use not determined. | Plaintiff's motion to strike defendant's fair use defense denied. | 9th | N.D. Cal. | Illustration (Pictorial/Graphical/Sculptural) |
Robinson v. Visio, LLC, No. 4:22-CV-928 SRW, 2022 WL 17356866 (E.D. Mo. Dec. 1, 2022). | 2022-12-01 | 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. | Fair use not determined. | Defendant's motion to dismiss denied. | 8th | E.D. Mo. | Photograph (Pictorial/Graphic/Sculptural) |
Whiddon v. Buzzfeed, Inc., No. 22 CIV. 4696 (CM), 2022 WL 17632593 (S.D.N.Y. Dec. 13, 2022). | 2022-10-31 | 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). | Fair use. | Defendant's motion to dismiss granted. | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Yout, LLC v. Recording Indus. Ass'n of Am., Inc., No. 3:20-CV-1602 (SRU), 2022 WL 4599203 (D. Conn. Sept. 30, 2022). | 2022-09-30 | 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." | Fair use not determined. Court held fair use not available as a defense. | Defendant's motion to dismiss granted. | 2d | D. Conn. | Sound Recording, Musical Works |
Hayden v. 2K Games, Inc., No. 1:17CV2635, 2022 WL 4356211 (N.D. Ohio Sept. 20, 2022). | 2022-09-20 | 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). | Fair use not determined. | Defendant's motion for summary judgment as to fair use denied. | 6th | N.D. Ohio | Tattoos, video games (Pictorial/Graphical/Sculptural) (Audiovisual) |
Pickersgill v. Egotist, LLC, No. 22-cv-01037-CMA-NRN, 2022 WL 4235012, (D. Colo. Sept. 14, 2022). | 2022-09-14 | 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. | Not fair use | Defendant's motion to dismiss denied | 10th | D. Col. | Photograph (Pictorial/Graphic/Sculptural) |
Sony Music Entertainment v. Vital Pharmaceuticals, Inc., No. 1:21-CV-22825, 2022 WL 4769055, (S.D. Fla. Sept. 13, 2022). | 2022-09-13 | 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. | Not Fair Use | Defendant's fair use arguments did not defeat plaintiff's motion for summary judgment | 11th | S.D. Fla. | Sound Recording |
Paul Rudolph Foundation v. Paul Rudolph Heritage Foundation, No. 20 CIV. 8180 (CM), 2022 WL 4109723, at *1 (S.D.N.Y. Sept. 8, 2022). | 2022-09-08 | 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. | Fair use inapplicable | Plaintiff's motion to dismiss counterclaim granted. | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural); Architectural works |
Monbo v. Nathan, No. 18-CV-5930 (MKB), 2022 WL 4591905 (E.D.N.Y. Aug. 26, 2022). | 2022-08-26 | 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. | Fair use | Defendants' motion for summary judgment granted | 2d | E.D.N.Y. | Motion picture |
Griner v. King, No. 21-CV-4024 CJW-MAR, 2022 WL 4282215 (N.D. Iowa Aug. 9, 2022), rev'd in part on reconsideration, No. 21-CV-4024 CJW-MAR, 2022 WL 4281600 (N.D. Iowa Sept. 15, 2022) . | 2022-08-09 | Plaintiff Lacey Griner owned the registered copyright in a photograph of plaintiff Sam Griner that formed the basis of a popular intrenet 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 Court found defendants did not meet their initial burden to show fair use for summary judgement, 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. | Fair use not determined. | Defendants' motion for summary judgment denied as to fair use. | 8th | N.D. Iowa | Photograph (Pictorial/Graphic/Sculptural) |
Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:21-CV-32-KHJ-MTP, 2022 WL 3222892, (S.D. Miss. Aug. 9, 2022). | 2022-08-09 | 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). | Not fair use. | Plaintiff's motion for summary judgment denied. | 5th | S.D. Miss. | News articles (Literary) |
McGucken v. Pub Ocean Ltd, 42 F.4th 1149 (9th Cir. 2022). | 2022-08-03 | 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)." Appeal from McGucken v. Pub Ocean Limited, No. 2:20-cv-01923-RGK-AS, 2021 WL 3519295 (C.D. Cal. July 27, 2021). [ADD LINK] | Not fair use. | Appeal. Grant of summary judgment in favor of defendant reversed and remanded. | 9th | 9th Cir. | Photograph (Pictorial/Graphic/Sculptural) |
Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. July 18, 2022). | 2022-07-18 | 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." | Fair use not determined. | Defendant's motion to dismiss denied. | 2nd | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
De Fontbrune v. Wofsy, 39 F.4th 1214 (9th Cir. 2022). | 2022-07-13 | This case involved defendant's reproduction of copyrighted photographs of Picasso works owned by plaintiff and plaintiff's attempt to enforce a French copyright judgment on same. 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 by declining 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 therefore have a chilling effect on art history scholarship. | No fair use. ("[Fair use] is at least highly debatable.") | Appeal. District court's grant of summary judgment for defendant reversed and remanded. | 9th | 9th Cir. | Photograph (Pictorial/Graphic/Sculptural) |
Oppenheimer v. Scarafile, 2:19-CV-3590, 2022 WL 2704875 (D.S.C. July 12, 2022). | 2022-07-12 | 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. | Fair use not determined. | Defendant's motion to summary judgment was granted in part and denied in part. | 4th | D.S.C. | Photograph (Pictorial/Graphic/Sculptural) |
Sedlik v. Drachenberg, No. CV 21-1102-DSF (MRWx), 2022 WL 2784818 (C.D. Cal. June 27, 2022). | 2022-06-27 | 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. 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. | Fair use not determined.. | Cross-motions for summary judgment denied. | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
United States v. Gordon, 37 F.4th 767 (1st Cir. 2022). | 2022-06-23 | 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. | Not fair use. | Appeal. Judgment affirmed | 1st | 1st Cir. | Motion picture |
In re DMCA § 512(h) Subpoena to Twitter, Inc., No. 20-MC-80214-VC, 2022 WL 2205476 (N.D. Cal. June 21, 2022). | 2022-06-21 | 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. | Fair use. | Non-party's motion to quash subpoena granted. | 9th | N.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Sketchworks Industrial Strength Comedy, Inc. v. Jacobs, No. 19-CV-7470-LTS-VF, 2022 WL 1501024 (S.D.N.Y. May 12, 2022). | 2022-05-12 | 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. | Fair Use. | Declaratory judgment plaintiff's motion for judgment on the pleadings granted. | 2d | S.D.N.Y | Theater production (Dramatic) (Literary) |
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). | 2022-04-27 | 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. | Not fair use. | Plaintiffs' motion for summary judgment granted (Magistrate Judge's report and recommendation) | D.C. | D.D.C. | Evaluation reports and assessment criteria (Literary) |
Whyte Monkee Prods., LLC v. Netflix, Inc., Case No. CIV-20-933-D, 2022 WL 1251033 (W.D. Okla. Apr. 27, 2022). | 2022-04-27 | Plaintiff, Whyte Monkee Production, held copyright registrations for eight videos. Plaintiff brought action against defendant, Netflix, for using clips of each video in the documentary series “Tiger King: Murder, Mayhem and Madness” without permission. Defendants moved for summary judgment for the eight videos in contention. The court granted defendant's motion for summary judgment on seven of the eight videos because the videos were "works for hire," an exception in the Copyright Act. For the eighth video, titled "Travis MM Funeral Ceremony," the court held each of the fair use factors favored fair use: (1) Netflix's use was transformative because it covered the clip with commentary; (2) the clips are more factual than creative; (3) only a small clip was used ; and (4) Netflix's use of the video will have minimal effect on the potential market of the copyright. Based on this analysis, the court held the use of the Travis MM Funeral Ceremony to be fair use of the copyright. | Fair use. | Defendants' motion for summary judgment granted. | 10th | W.D. Okla. | Motion picture |
Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., No. 597 F. Supp. 3d 213 (D.D.C. 2022). | 2022-03-31 | 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. | Fair use. | Motions for summary judgment granted in part and denied in part. | D.C. | D.D.C. | Technical Standards (Literary) |
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). | 2022-03-31 | 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. | Fair use not determined. | Defendants motion for summary judgment denied. | 2d | S.D.N.Y. | Software (Literary) |
Yang v. Mic Network Inc., No. 20-4097-CV, 2022 WL 906513 (2d Cir. 2022) | 2022-03-29 | 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) | Fair use. | Appeal. Grant of defendant's motion to dismiss affirmed. | 2nd | 2d Cir. | Photograph (Pictorial/Graphic/Sculptural) |
Viacom Intl. Inc. v. Pixi Universal, LLC, No. CV H-21-2612, 2022 WL 909865 (S.D. Tex. Mar. 25, 2022). | 2022-03-25 | 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. | Not fair use. | Motion for preliminary injunction granted. | 5th | S.D. Tex. | Motion pictures and other audiovisual works; pictorial, graphic, and sculptural works. |
Assessment Techs. Inst., LLC v. Parkes, 588 F. Supp. 3d 1178 (D. Kan. 2022). | 2022-03-21 | 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. | Fair use not determined. | Defendant's motion for summary judgment as to fair use denied. | 10th | D. Kan. | Videos and study cards (Literary) (Motion Picture) |
McGucken v. Newsweek LLC, No. 19 CIV. 9617 (KPF), 2022 WL 836786 (S.D.N.Y. Mar. 21, 2022). | 2022-03-21 | 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). | Fair Use not determined. | Cross-motions for summary judgment denied. | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
XpandOrtho, Inc. v. Zimmer Biomet Holdings, Inc., No. 321CV00105BENKSC, 2022 WL 801743 (S.D. Cal. Mar. 15, 2022). | 2022-03-15 | 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. | Fair use not determined. | Defendant's motion to dismiss denied. | 9th | S.D. Cal. | Animated Images (Motion Picture) |
Bus. Casual Holdings, LLC v. TV-Novosti, No. 21-CV-2007 (JGK), 2022 WL 784049 (S.D.N.Y. Mar. 14, 2022). | 2022-03-14 | 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. | Not fair use. | Defendant's motion to dismiss denied. | 2d | S.D.N.Y. | Videos |
Monsarrat v. Newman, 28 F.4th 314 (1st Cir. 2022). | 2022-03-10 | 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) | Fair use. | Appeal. Grant of defendant's motion to dismiss affirmed. | 1st | 1st Cir. | Online forum discussion thread (Literary) |
Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022). | 2022-02-25 | A high school softball team and flag corps tweeted a motivational passage from a book authored by plaintiff Keith Bell. Plaintiff sued defendant school district, Eagle Mountain, for copyright infringement, and defendant moved to dismiss based on 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." | Fair use. | Appeal; grant of defendant's motion to dismiss affirmed. | 5th | 5th Circuit | Quotation (Literary) |
Moonbug Ent. Ltd. v. Babybus (Fujian) Network Tech. Co., Ltd., No. 21-cv-06536-EMC, 2022 WL 580788 (N.D. Cal., Feb. 25, 2022). | 2022-02-25 | 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. | Not fair use. | Plaintiff's motion to strike affirmative defense granted; motion to dismiss counterclaim granted. | 9th | N.D. Cal. | Television show, characters, songs (Motion Picture) (Musical) |
In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-mc-00268 (NSR), 2022 U.S. Dist. LEXIS 9029 (S.D.N.Y. Jan. 18, 2022) | 2022-01-18 | 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. | Fair use. Defendant's motion to quash subpoena granted. | Discovery Request | 2d | S.D.N.Y. | Motion Picture (Audiovisual) |
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) | 2022-01-13 | 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. | Fair use not determined. Plaintiff's motion to expedite discovery granted. | Discovery Request | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2021-12-29 | 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. | Not fair use. Defendant's motion to quash subpoena denied. | Discovery Request | 9th | N.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Incredible Features v. Backchina, No. CV 20-943-DMG (RAOx), 2021 U.S. Dist. LEXIS 250121 (C.D. Cal. Dec. 16, 2021) | 2021-12-16 | 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.) | Not fair use. Plaintiff's motion for summary judgment granted in part. | Motion for Summary Judgment | 9th | C.D. CAl. | Photograph (Pictorial/Graphic/Sculptural) |
O'Neil v. Ratajkowski, No. 19 CIV. 9769 (AT), 2021 WL 4443259 (S.D.N.Y. Sept. 28, 2021) | 2021-09-28 | 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.") | Fair use not determined. Both parties' motion for summary judgment denied. | Motion for Summary Judgment | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc., No. SAG-18-03403, 2021 U.S. Dist. LEXIS 222009 (D. Md. Nov. 17, 2021) | 2021-11-17 | 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. | Fair use not determined. Defendant's motion for summary judgment granted in part. | Motion for Summary Judgment | 4th | D. Md. | Photograph (Pictorial/Graphic/Sculptural) |
Stross v. Nextluxurydotcom LLC, No. 2:21-cv-01181-JVS (AFMx), 2021 U.S. Dist. LEXIS 250462 (C.D. Cal. Nov. 17, 2021) | 2021-11-17 | 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. | Not fair use. Defendant's motion to set aside default judgment denied. | Other | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
McGucken v. Content IQ LLC, No. 20 CIV. 8114 (AKH), 2021 WL 5357473 (S.D.N.Y. Nov. 16, 2021) | 2021-11-16 | 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.) | Fair use not determined. Plaintiff's motion to amend complaint granted. | Other | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Pickersgill v. Neely, No. 3:21-CV-00773-X, 2021 WL 5163197 (N.D. Tex. Nov. 5, 2021) | 2021-11-05 | 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. | Fair use not determined. Plaintiff's motion to strike denied. | Other | 5th | N.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Alper Auto., Inc. v. Day to Day Imps., Inc., 2021 U.S. Dist. LEXIS 212715 | 2021-11-03 | 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. | Fair use not determined. | Other | 11th | S.D. Fla. | Sticker Design (Pictorial/Graphic/Sculptural) |
CDK Glob. LLC v. Brnovich, 16 F.4th 1266 (9th Cir. 2021) | 2021-10-25 | 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. Regarding the creation of unlicensed copies of the DMS, it is not clear that a copy would need to be made, and even if it were required CDK objects to making a copy of their own work which would be kept in their exclusive possession (not clear if this would violate the Copyright Act). Furthermore, causing a DMS provider (such as CDK) to copy its software on its own server in these circumstances would constitute fair use. Next, in regard to the copies of the API, the court distinguishes from Google LLC v. Oracle Am., Inc., although the court notes that the Google's use was found to be fair use, and CDK cannot show that the use of the API would infringe copyright. | Fair use not determined. Affirmed. Plaintiff's motion for preliminary injunction denied. | Motion for Preliminary Injunction, on Appeal | 9th | 9th Cir. | Software (Literary) |
Baugher v. GoDaddy.com LLC, No. MC-19-00034-PHX-JJT, 2021 U.S. Dist. LEXIS 204449 (D. Ariz. Oct. 22, 2021) | 2021-10-22 | 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. | Not fair use. Defendant's motion to quash subpoena denied. | Discovery Request | 9th | D. Ariz. | Manuscript, Visual Art (Literary, Pictorial/Graphic/Sculptural) |
Griner v. King, No. 21-CV-4024 CJW-MAR, 2021 U.S. Dist. LEXIS 215050 (N.D. Iowa Oct. 20, 2021) | 2021-10-20 | Plaintiff is the owner of the copyright in the "Success Kid" meme photo, which was used by defendant Steve King, a former Congressional Representative. 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, to submit a takedown notice, a copyright holder must consider whether the potentially infringing material is fair use. In this case, the court found that 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. | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 8th | N.D. Iowa | Photograph (Pictorial/Graphic/Sculptural) |
Leveille v. Upchurch, No. 3:19-cv-908-BJD-MCR, 2021 U.S. Dist. LEXIS 248486 (M.D. Fla. Oct. 15, 2021) | 2021-10-15 | 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.) | Fair use not determined. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 11th | M.D. Fla. | Visual Art (Pictorial/Graphic/Sculptural) |
Grant v. Trump, No. 20-CV-7103 (JGK), 2021 WL 4435443 (S.D.N.Y. Sept. 28, 2021) | 2021-09-28 | Donald Trump published a tweet from his personal Twitter account containing a 55 second animated video that used Plaintiff Eddy Grant's song "Electric Avenue." The video endorsed Defendant's reelection campaign and criticized his opponent. Defendant did not receive a license or Plaintiff's permission to use the song in the video. Plaintiff brought a copyright infringement action against the Defendant, and Defendant moved to dismiss by asserting fair use. Applying the four factor analysis, the court held that Defendant's use of the song was not fair use. First, since the song was used unaltered in the video, it was non-transformative, and the use of the song in a political campaign video was commercial. The video's overarching political purpose did not automatically renew its use of any non-political work as transformative. Second, the nature of the song was a creative work, and it was published and publicly available. Third, the portion of the song used in the video was immediately recognizable, included lyrics that were at the core of the song, and played for 72.7% of the video's duration. Fourth, while the video was not a substitute for the song itself, the video's unlicensed use of the song could threaten Plaintiff's licensing markets by undermining his ability to obtain compensation for use of the song in the future, regardless of whether the Plaintiff had elected to develop such markets at that point. The court found that all four factors favored Plaintiff and Defendant's motion to dismiss was denied. | Not fair use. Defendant's motion to dismiss was denied. | Motion to Dismiss | 2d | S.D.N.Y. | Song (Musical) |
Easter Unlimited, Inc. v. Rozier, No. 18-CV-06637 (KAM), 2021 U.S. Dist. LEXIS 184636 (E.D.N.Y. Sep. 27, 2021) | 2021-09-27 | 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. | Fair use. Defendant motion for summary judgment granted. | Motion for Summary Judgment | 2d | E.D.N.Y. | Sculpture (Pictorial/Graphic/Sculptural) |
Stross v. Centerra Homes of Tex., No. 1:17-CV-676-RP, 2021 U.S. Dist. LEXIS 219239 (W.D. Tex. Sep. 27, 2021) | 2021-09-27 | 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. | Fair use not decided. Plaintiff's motion fo summary judgment denied. | Motion for Summary Judgment | 5th | W.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Hunley v. BuzzFeed, Inc., No. 1:20-CV-08844-ALC, 2021 U.S. Dist. LEXIS 189420 (S.D.N.Y. Sep. 30, 2021) | 2021-09-20 | 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. | Not fair use. Defendant's motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Frye v. Lagerstrom, No. 20-3134, 2021 WL 4022695 (2d Cir. Sept. 3, 2021) | 2021-09-03 | 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. | Fair use not determined. Affirmed. Plaintiff's motion for summary judgment granted. | Motion for Summary Judgment | 2d | 2d Cir. | Motion Picture (Audiovisual) |
Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021) | 2021-08-24 | Warhol Foundation sought declaratory judgment that "pop art" visual works utilizing a photograph of musician Prince are fair use; Goldsmith, a photographer, counterclaimed infringement. The Second Circuit found against fair use. The court discussed the transformative element at length, and applied a test that ignores the subjective intent of the photographer and artists, and focused on comparing the two works side by side. Because the artwork was considered to be a new artist's style essentially overlaid over the original, the court found the use non transformative. The court further held that the art piece "retains the essential elements of its source material," and likened it to a derivative work. The court found the factor of commerciality against fair use as well, though acknowledging that the plaintiff organization is a non profit. The court pointed to the fact that the photograph was unpublished and creative as well in regard to the second factor. The court then found that the artwork borrowed significantly from the source photograph, regardless of "flatenning" and other editing techniques used. The court lastly found that the fourth factor also weighed against fair use, as the secondary use may adversely affect rights holder's potential market for licensing, even if there currently exists no such market. (Ed. note: This opinion blithely dismisses over a century of artistic expression using appropriation and recontextualization in ways that add "new expression, meaning, or message." The court also ignored Google v. Oracle's instruction that in analyzing factor four, market harm, courts should consider "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?" In any event, in this case there is a key fact that doesn't exist in most other fair use cases, namely that the orginal work had been licensed by the rightholder, and the subsequent use was made by a third party that obtained or was sublicensed by the original licensee. (In this case, the original photograph had been licensed by Vanity Fair magazine for Andy Warhol to create artwork with it, and credited as a "reference work" in the original piece; Andy Warhol then created additional, unauthorized versions of the same artwork.) | Not fair use. Reversed. Defendant's motion for summary judgment denied. | Motion for Summary Judgment, on Appeal | 2d | 2d Cir. | Photograph (Pictorial/Graphic/Sculptural) |
Divine Dharma Meditation International Inc. v. Institute of Latent Energy Studies, No. 19-55264, 2021 WL 3721438 (9th Cir. Aug. 23, 2021) | 2021-08-23 | 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. | Fair use. Affirmed. Plaintiffs' motion for Rule 50(b) denied. | Appeal | 9th | 9th Cir. | Painting (Pictorial/Graphic/Sculptural) |
Philpot v. Independent Journal Review, No. 1:20-cv-00590-AJT-TCB, 2021 WL 3669321 (E.D. Va. Aug. 18, 2021) | 2021-08-18 | Plaintiff Larry G. Philpot sued Defendant Independent Journal Review for copyright infringement based on Defendant's publication of a photograph taken by Philpot of Ted Nugent performing in concert. Defendant's Motion for Summary Judgment was granted because defendant's use of the Photograph focused on social commentary on issues of public concern that placed it in a "new context to serve a different purpose." Additionally, there was minimal commercial gain to, and lack of financial motive by, the Defendant, no demonstrable market or financial injury to Philpot or bad faith or negligent use of the Photograph, considering the terms under which Philpot allows the use of his photographs and the attribution to Philpot reachable from the Article. (Ed. note: the court distinguished between this case and Violent Hues v. Brammer, 922 F.3d 255 (4th Cir. 2019), noting that here, the photo was issued under a Creative Commons license, and attribution was indirectly available given that the site linked back to the Wikimedia Commons site where Philpot posted the photo. The court correctly noted that the fact of the Creative Commons license issuance should heavily influence (if not determine) the market harm factor in a fair use analysis.) | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 4th | E.D. Va. | Photograph (Pictorial/Graphic/Sculptural) |
Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971 F.3d 1042 (9th Cir. 2020) | 2021-08-16 | 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. | Not fair use. Defendant's motion for summary judgment denied. Plaintiff's partial motion for summary judgment granted. | Motion for Summary Judgment | 9th | N.D. Cal. | Software (Literary) |
Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021) | 2021-08-16 | Copyright infringement case for publishing floorplans without authorization from Plaintiff, who built the homes. District court granted defendants' MSJ, reasoning that 17 USC §120(a) provided a defense to liability, and defendants appealed. Appellate court interpreted §120(a) as not applying as a defense in this case. The court speculated that other defenses such as fair use may apply, but did not rule on that issue. | Fair use not determined. Reversed and remanded. Defendant's motion for summary judgment denied. | Motion for Summary Judgment, on Appeal | 8th | 8th Cir. | Floorplan (Architectural) |
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) | 2021-08-09 | 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.) | Fair use. Motion for preliminary injunction denied. | Motion for Preliminary Injunction | 9th | C.D. Cal. | Model Legal Standards (Literary) |
Werner v. Red Blue Media Inc., No. 2:20-cv-01024-SVW-AFM, 2021 WL 3560588 (C.D. Cal. Aug. 9, 2021) | 2021-08-09 | 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. | Not fair use. Plaintiff's motion for summary judgment granted | Motion for Summary Judgment | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
National Academy of Television Arts and Sciences, Inc. v. Multimedia System Design, Inc., No. 20-CV-7269 (VEC), 2021 WL 3271829 (S.D.N.Y. July 30, 2021) | 2021-07-30 | 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. | Not fair use. Plaintiff's motion to dismiss the counterclaims is granted. Defendant's partial motion to dismiss is denied. | Motion to Dismiss | 2d | S.D.N.Y. | Scluptural (Pictorial/Graphic/Sculptural) |
Nicklen v. Sinclair Broadcast Group, Inc., No. 20-CV-10300 (JSR), 2021 WL 3239510 (S.D.N.Y. July 30, 2021) | 2021-07-30 | 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).) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Video (Audiovisual) |
Fioranelli v. CBS Broadcasting Inc., No. 15-CV-0952 (VSB), 2021 WL 3372695 (S.D.N.Y. July 28, 2021) | 2021-07-28 | 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 Andy Warhol Found. v. Goldsmith case decided by the Second Circuit less than a month later: 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 many of the defendants—many used less than 2 seconds, most used less than ten—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.) | Mixed result. Plaintiff's motion for summary judgment granted in part. | Motion for Summary Judgment | 2d | S.D.N.Y. | Documentary Film (Audiovisual) |
Miller v. 4Internet, LLC, No. 2:18-cv-02097-JAD-VCF, 2021 U.S. Dist. LEXIS 139585 (D. Nev. July 27, 2021) | 2021-07-27 | 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.) | Fair use not determined. Plaintiff's objection to motion to compel overruled. | Discovery Request | 9th | D. Nev. | Photograph (Pictorial/Graphic/Sculptural) |
McGucken v. Pub Ocean Limited, No. 2:20-cv-01923-RGK-AS, 2021 WL 3519295 (C.D. Cal. July 27, 2021) | 2021-07-27 | 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 (in chambers) denied the Plaintiff's motion for summary judgment and entered judgment for the defendant. The court determined that the Defendant's use of the photos counted as news reporting and was transformative because only 10 of 40 photos used were plaintiff's and the article provided commentary to provide context beyond what was already apparent. The court also determined that the photos were highly creative and unpublished which went against fair use, that the photos were insubstantial in context which went in favor of fair use, and that the Defendant's transformative use muted the degree of market substitution in favor of fair use. (Ed. note: A Doniger Burroughs case.) | Fair use. Plaintiff's motion for summary judgment denied and judgment entered for defendant. | Motion for Summary Judgment | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Edland v. Basin Elec. Power Coop., No. 4:21-CV-04008-KES, 2021 WL 3080225 (D.S.D. July 21, 2021) | 2021-07-21 | 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. | Fair use not determined. Defendant's motion to dismiss denied in part. | Motion to Dismiss | 8th | D.S.D. | Video (Audiovisual) |
Wood v. Observer Holdings, LLC, No. 20 Civ. 07878, 2021 WL 2874100 (S.D.N.Y. July 8, 2021) | 2021-07-08 | 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. | Not fair use. Defendants' motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Philpot v. Lending Tree, LLC, No. 3:20-cv-268-RJC-DSC, 2021 WL 2768859 (W.D.N.C. July 2, 2021) | 2021-07-02 | 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 transformativee' 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.” | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 4th | W.D.N.C. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2021-07-01 | 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. | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 5th | E.D. La. | Photograph (Pictorial/Graphic/Sculptural) |
Stebbins v. Polano, No. 21-cv-04184-JSC, 2021 WL 2682339 (N.D. Cal. June 30, 2021) | 2021-06-30 | 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. | Fair use not determined. | Other | 9th | N.D. Cal. | Video (Audiovisual) |
Philpot v. MyArea Network, Inc., No. 8:20-cv-1239-VMC-TGW, 2021 WL 2649236 (M.D. Fla. June 28, 2021) | 2021-06-28 | 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.) | Likely fair use, but defendant's summary judgment motion on fair use denied nevertheless. | Motion for Summary Judgment | 11th | M.D. Fla. | Photograph (Pictorial/Graphic/Sculptural) |
Farrington v. Backchina LLC, No. H-19-3546, 2021 WL 2581418 (S.D. Tex. June 23, 2021) | 2021-06-23 | 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.) | Not fair use. Plaintiff's motion for summary judgment granted. | Motion for Summary Judgment | 5th | S.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Greenspan v. Qazi, No. 20-cv-03426-JD, 2021 WL 2577526 (N.D. Cal. June 23, 2021) | 2021-06-23 | 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. | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 9th | N.D. Cal. | Book (Literary) |
Radabaugh v. Clay Turner Realty Group, LLC, No. CV 120-058, 2021 WL 2463576 (S.D. Ga. June 16, 2021) | 2021-06-16 | 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.) | Not fair use. Plaintiff's motion for partial summary judgment granted. | Motion for Summary Judgment | 11th | S.D. Ga. | Photograph (Pictorial/Graphic/Sculptural) |
Mattel, Inc. v. Unicorn Element, No. 21 Civ. 2333 (VM), 2021 WL 2292918 (S.D.N.Y. June 4, 2021) | 2021-06-04 | 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. | Not fair use. Plaintiff's motion for attachment granted. | Other | 2d | S.D.N.Y. | Illustration (Pictorial/Graphic/Sculptural) |
Elatab v. Hesperios Inc., No. 19 CV 9678 (ALC), 2021 WL 2226877 (S.D.N.Y. June 2, 2021), No. 19 CV 9678 (ALC), 2021 WL 2226877 (S.D.N.Y. June 2, 2021) | 2021-06-02 | 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.) | Not fair use. Defendant's motion to dismiss denied in part. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2021-05-28 | Plaintiff (record and music companies) alleged copyright infringement of musical recordings used in 199 videos that appeared on Defendant's (Vimeo's) website. In a sprawling opinion analyzing Vimeo's eligibility for the DMCA §512 safe harbor, the court held that mere "awareness that a user posting contains copyrighted music" is insufficient for red flag knowledge, given the possibility that the user had authorization to use the copyrighted material or that it qualified as fair use. The Court considered various actions by Vimeo employees such as assigning music credits, likes, duration, and start time, commenting, whitelisting, burying, channels and employee inducement, receipt of cease-and-desist letters, and employee participation in the creation of videos to determine whether the employees possessed the requisite "red flag knowledge" of copyright infringment. The Court denied Vimeo's motion as to the 26 videos uploaded by Vimeo employees, but granted Vimeo's motion as to the remaining 281 videos. | Fair use not determined. Plaintiffs' motion for summary judgment denied. Defendant's motion for summary judgment granted in part. | Motion for Summary Judgment | 2d | S.D.N.Y. | Song (Musical, Sound Recording) |
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) | 2021-05-25 | 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.) | Not fair use. Plaintiff's motion to dismiss denied. | Motion to Dismiss | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Brown v. Netflix, Inc., 855 F. App'x 61 (2d Cir. 2021) | 2021-05-18 | 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).) | Fair use. Affirmed. Defendants' motion to dismiss granted. | Motion to Dismiss, on Appeal | 2d | 2d Cir. | Song (Musical) |
Fotohaus LLC v. Advanced Plan for Health, LLC, No. 3:20-CV-2049-S-BN, 2021 WL 2690093 (N.D. Tex. Apr. 20, 2021) | 2021-04-20 | 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. | Fair use not determined. Defendant's motion to dismiss granted on other grounds. | Motion to Dismiss | 5th | N.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Michael Grecco Productions, Inc. v. Livingly Media, Inc., No. CV 20-0151 DSF (JCx), 2021 WL 2546749 (C.D. Cal. Apr. 16, 2021) | 2021-04-16 | 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.) | Not fair use. Plaintiff's motion for summary judgment granted in part, Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Google v. Oracle, 141 S.Ct. 1183 (2021) | 2021-04-05 | 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." | Fair use. Reversed and remanded. | Writ of Certiorari | 9th | U.S. Supreme Court | Software (Literary) |
Marano v. Metropolitan Museum of Art, 844 F. App'x 436 (2d Cir. 2021) | 2021-04-02 | Photographer brought action against art museum alleging that museum infringed his copyright by featuring his photograph of virtuoso rock guitarist 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 it's 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.) | Fair use. Affirmed. | Appeal | 2d | 2d Cir. | Photograph (Pictorial/Graphic/Sculptural) |
Sketchworks Indus. Strength Comedy, Inc. v. Jacobs, No. 19-CV-7470-LTS-DCF, 2021 WL 1226955 (S.D.N.Y. Mar. 31, 2021) | 2021-03-31 | 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. | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Stageplay (Dramatic) |
Bell v. Eagle Mountain Saginaw Independent School District, No. 4:20-cv-01157-P, 2021 WL 1151706 (N.D. Tex. Mar. 26, 2021) | 2021-03-26 | 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). The court granted the defendant's Motion to Dismiss, reasoning that using just one page constituted fair use. The court also awarded attorney's fees and costs to Defendant after a detailed analysis of the Fogarty factors regarding when to award attorney's fees. (Ed note: The 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.") | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 5th | N.D. Tex. | Book (Literary) |
OMG Accessories LLC v. Mystic Apparel LLC, No. 19 CV 11589 (ALC) (RWL), 2021 WL 1167528 (S.D.N.Y. Mar. 25, 2021) | 2021-03-25 | 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.) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Design Pattern (Pictorial/Graphic/Sculptural) |
Von Der Au v. Michael G. Imber, Architect, PLLC, No. SA-20-CV-00360-XR, 2021 WL 1131719 (W.D. Tex. Mar. 24, 2021) | 2021-03-24 | 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. | Not fair use. Plaintiff's motion for partial summary judgment granted. | Motion for Summary Judgment | 5th | W.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2021-03-17 | 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. | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 9th | C.D. Cal. | Video Interview (Audiovisual) |
Frisby v. Sony Music Entertainment, No. CV 19-1712-GW-AGRx, 2021 WL 2325646 (C.D. Cal. Mar. 11, 2021) | 2021-03-11 | 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.) | Not fair use. Defendants' motion for summary judgment granted. | Motion for Summary Judgment | 9th | C.D. Cal. | Song Sample (Musical) |
Pyrotechnics Management Inc. v. XFX Pyrotechnics LLC, No. 2:19-cv-00893, 2021 WL 925812 (W.D. Pa. Mar. 11, 2021) | 2021-03-11 | 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. | Not fair use. Plaintiff's motion for preliminary injunction granted. | Motion for Preliminary Injunction | 3d | W.D. Pa. | Software (Literary) |
ENTTech Media Group LLC v. Okularity, Inc., No. 2:20-cv-06298-JWH-Ex, 2021 WL 916307 (C.D. Cal. Mar. 10, 2021) | 2021-03-10 | 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.) | Fair use not determined. Defendant's motion to dismiss denied in part. | Motion to Dismiss | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Golden v. Michael Grecco Productions, Inc., 524 F. Supp. 3d 52 (E.D.N.Y. Mar. 9, 2021) | 2021-03-09 | 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.) | Not fair use. Defendant's motion for summary judgment affirmed. | Motion for Summary Judgment | 2d | E.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
MidlevelU, Inc. v. ACI Information Group, 989 F.3d 1205 (11th Cir. 2021) | 2021-03-03 | 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.) | Not fair use. Affirmed. | Appeal | 11th | 11th Cir. | Blog Post (Literary) |
Helmer v. Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., No. 1:20-CV-105, 2021 WL 428647, at *1 (S.D. Ohio Feb. 8, 2021) | 2021-02-08 | 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. | Motion to bifurcate denied. Fair use issue not decided. | Other | 6th | S.D. Ohio | Treatise (Literary) |
Larson v. Dorland Perry, No. 19-CV-10203-IT, 2021 WL 352375 (D. Mass. Feb. 2, 2021) | 2021-02-02 | 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." | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 1st | D. Mass. | Correspondence (Literary) |
DeLima v. Google, Inc., No. 1:19-CV-978-JL, 2021 WL 294560 (D.N.H. Jan. 28, 2021) | 2021-01-28 | 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." | Fair use not determined. Defendant's motion to dismiss granted. | Motion to Dismiss | 9th | D.N.H. | Social Media Posts (Literary, Pictorial/Graphic/Sculptural) |
Monsarrat v. Newman, No. CV 20-10810-RGS, 2021 WL 217362, at *2 (D. Mass. Jan. 21, 2021) | 2021-01-21 | 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. | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 1st | D. Mass. | Blog Post (Literary) |
Gayle v. Allee, No. 18 CIV. 3774 (JPC), 2021 WL 120063 (S.D.N.Y. Jan. 13, 2021) | 2021-01-13 | 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. | Fair use not determined. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | S.D.N.Y. | Graffiti Art (Pictorial/Graphic/Sculptural) |
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) | 2020-12-22 | 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.) | Fair use. Plaintiff's motion for reconsideration denied | Motion for Reconsideration | 2d | E.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 983 F.3d 443, 448 (9th Cir. 2020) | 2020-12-18 | 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. | Fair use not determined. Reversed. Defendant's motion for summary judgment denied. | Motion for Summary Judgment, on Appeal | 9th | 9th Cir. | Book (Literary) |
Castle v. Kingsport Publ'g Corp., No. 2:19-CV-00092-DCLC, 2020 U.S. Dist. LEXIS 233919 (E.D. Tenn. Dec. 14, 2020) | 2020-12-14 | 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. | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 6th | E.D. Tenn. | Photograph (Pictorial/Graphic/Sculptural) |
Sands v. What's Trending, No. 20-CV-02735 (GBD) (KHP), 2020 U.S. Dist. LEXIS 236019 (S.D.N.Y. Dec. 14, 2020) | 2020-12-14 | 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.) | Fair use not determined. Magistrate judge recommended denying Defendant's motion to dismiss. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Oppenheimer v. ACL LLC, No. 3:19-CV-00024-GCM, 2020 U.S. Dist. LEXIS 226248 (W.D.N.C. Dec. 2, 2020) | 2020-12-02 | 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.) | Fair use not determined. Plaintiff's motion for summary judgment denied. | Motion for Summary Judgment | 4th | W.D.N.C. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2020-11-24 | 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. | Not fair use. Plaintiff's motion for a preliminary injunction granted. | Motion for Preliminary Injunction | 11th | S.D. Ala. | Examination Questions (Literary) |
Aoki v. Gilbert, No. 2:11-cv-02797-TLN-CKD, 2020 U.S. Dist. LEXIS 215130 (E.D. Cal. Nov. 16, 2020) | 2020-11-16 | 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. | Not fair use. Defendant liable for copyright infringement. | Other | 9th | E.D. Cal. | Slideshow (Literary, Pictorial/Graphic/Sculptural) |
Lanard Toys v. Anker Play Prods., No. CV 19-4350-RSWL-AFMx, 2020 U.S. Dist. LEXIS 221783 (C.D. Cal. Nov. 12, 2020) | 2020-11-12 | 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. | Not fair use. Plaintiff's motion for summary judgment granted as to fair use. | Motion for Summary Judgment | 9th | C.D. Cal. | Packaging Design (Pictorial/graphic/sculptural) |
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) | 2020-11-02 | 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. | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | E.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Fellner v. Travel 4 All Seasons LLC, No. CV-19-01719-PHX-DJH, 2020 U.S. Dist. LEXIS 198638 (D. Ariz. Sep. 30, 2020) | 2020-09-30 | 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) | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 9th | D. Ariz. | News Article (Literary) |
Alexander v. Take-Two Interactive Software, Inc., No. 18-cv-966-SMY, 2020 U.S. Dist. LEXIS 177130 (S.D. Ill. Sep. 26, 2020) | 2020-09-26 | Plaintiff designed several tattoos that appeared on a wrestler depicted in Defendant's "WWE 2K" series of video games. Plaintiff sued defendant for copyright infringement, and Defendant moved for summary judgment on fair use grounds. The district court declined to rule on fair use at the summary judgment stage because of several material factual disputes, such as Plaintiff's purpose in creating the tattoos, the tattoos' size and prominence in the video games, and the degree of market harm, if any. | Fair use not determined. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 7th | S.D. Ill. | Tattoo (Pictorial/graphic/sculptural) |
Iantosca v. Elie Tahari, Ltd., No. 19-cv-04527 (MKV), 2020 U.S. Dist. LEXIS 171512 (S.D.N.Y. Sep. 18, 2020) | 2020-09-18 | 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.) | Not fair use. Plaintiff's motion for summary judgment granted. | Motion for Summary Judgment | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Chapman v. Maraj, No. 2:18-cv-09088-VAP-SSx, 2020 U.S. Dist. LEXIS 198684 (C.D. Cal. Sep. 16, 2020) | 2020-09-16 | 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. | Fair use. Defendant's motion for partial summary judgment granted. | Motion for Summary Judgment | 9th | C.D. Cal. | Song Cover (Musical) |
Rimini St. v. Oracle Int'l Corp., 473 F. Supp. 3d 1158 (D. Nev. 2020) | 2020-09-14 | 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. | Not fair use. Counterclaimant's motion for summary judgment granted. | Motion for Summary Judgment | 9th | D. Nev. | Software (Literary) |
Schwartzwald v. Oath Inc., No. 19-CV-9938 (RA), 2020 U.S. Dist. LEXIS 165641 (S.D.N.Y. Sep. 10, 2020) | 2020-09-10 | 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.) | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Stross v. Hearst Communs., Inc., No. SA-18-CV-01039-JKP, 2020 U.S. Dist. LEXIS 161293 (W.D. Tex. Sep. 3, 2020) | 2020-09-03 | 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. | Fair use not determined. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 5th | W.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Beom Su Lee v. Karaoke City, 2020 U.S. Dist. LEXIS 157834 (S.D.N.Y. Aug. 31, 2020) | 2020-08-31 | 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. | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Song (Musical) |
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) | 2020-08-24 | 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. | Fair use not determined. Defendants' motion to dismiss denied. | Motion to Dismiss | 9th | S.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2020-08-06 | 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. | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 9th | C.D. Cal. | Motion Picture (Audiovisual) |
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) | 2020-07-27 | 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. | Fair use not determined. Defendants' motion to dismiss denied. | Motion to Dismiss | 11th | S.D. Fla. | Architectural Drawings (Architectural) |
Miller v. Suriel Grp., Inc., No. 19-24936-CIV, 2020 U.S. Dist. LEXIS 197832 (S.D. Fla. July 21, 2020) | 2020-07-21 | 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.) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 11th | S.D. Fla. | Photograph (Pictorial/Graphic/Sculptural) |
Reilly v. Louder With Crowder, LLC, No. 3:20-CV-0395-S, 2020 U.S. Dist. LEXIS 125725 (N.D. Tex. July 16, 2020) | 2020-07-16 | 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.) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 5th | N.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Marano v. Metro. Museum of Art, No. 19-CV-8606 (VEC), 2020 U.S. Dist. LEXIS 122515 (S.D.N.Y. July 13, 2020) | 2020-07-13 | The Met (Defendant) published Plaintiff's photograph of Eddie Van Halen on its website as part of an online catalog for an exhibition that examine instruments used in rock n' roll. The photo in question showed Mr. Van Halen performing, presumably using his "Frankenstein" guitar which was the subject of that portion of the exhibition. Plaintiff sued for copyright infringement. The district court ordered Plaintiff to show cause why the case should not be dismissed under the fair use doctrine. The district court relied heavily on Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), in dismissing Plaintiff's complaint. Plaintiff claimed that the purpose of the photograph was to show "what Van Halen looks like in Performance" and that "the original meaning" behind the Photo was to "convey the message that Van Halen is a groundbreaking and unorthodox musician." The court distinguished this use from the Met's purpose which was "to spotlight the 'Frankenstein' guitar" using the Photo to reference and contextualize the exhibition object, which Van Halen pieced together himself "to achieve the ultimate guitar for tone, playability, dependability, and functionality." The court also reasoned that the exhibition catalog is a scholarly use. Following the Second Circuit in Bill Graham, the court held that the fourth factor tipped in Defendant's favor since Defendant's use fell within a "transformative market," i.e., a market consisting of those seeking to examine the "Frankenstein" guitar. Upheld by summary order in Marano v. Metropolitan Museum of Art, 844 F. App'x 436 (2d Cir. 2021) (summary order). (Ed. note: A Richard Liebowitz case.) | Fair use. Complaint dismissed. | Other | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Bell v. Worthington City Sch. Dist., No. 2:18-cv-961, 2020 U.S. Dist. LEXIS 96424 (S.D. Ohio June 2, 2020) | 2020-06-02 | 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. | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 6th | S.D. Ohio | Book (Literary) |
McGucken v. Newsweek LLC, 2020 U.S. Dist. LEXIS 96126 (S.D.N.Y. June 1, 2020). | 2020-06-01 | 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.) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Noland v. Janssen, No. 17-CV-5452 (JPO), 2020 U.S. Dist. LEXIS 95454 (S.D.N.Y. June 1, 2020) | 2020-06-01 | 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. | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | S.D.N.Y. | Sculpture (Pictorial/graphic/sculptural) |
Walsh v. Townsquare Media, Inc., No. 19-CV-4958 (VSB), 2020 U.S. Dist. LEXIS 96090 (S.D.N.Y. June 1, 2020) | 2020-06-01 | 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.) | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2020-05-28 | 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.) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 11th | M.D. Fla. | Photograph (Pictorial/Graphic/Sculptural) |
Int'l Code Council, Inc. v. UpCodes, Inc., 2020 U.S. Dist. LEXIS 92324 (S.D.N.Y. May 26, 2020) | 2020-05-26 | 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. | Mixed result. Defendant's motion for summary judgment granted as to one category of materials but not the other. | Motion for Summary Judgment | 2d | S.D.N.Y. | Building Codes (Literary) |
CDK Global v. Brnovich, No. CV-19-04849-PHX-GMS, 2020 U.S. Dist. LEXIS 88632 (D. Ariz. May 20, 2020) | 2020-05-20 | Plaintiffs operate dealer management systems (DMSs), which store and process data for car dealers. The Arizona legislature enacted a "Dealer Law" requiring DMS providers to allow unlicensed third parties access to providers' respective DMSs. Plaintiffs challenged this law, arguing that this requirement violated their software copyrights since "each time a user runs the DMS software, that process creates a new fixed copy of the original computer program code in the computer's random access memory," and Defendant claimed such scenarios constitute fair uses. The district court found Defendants' fair use argument insufficient at the motion to dismiss stage. Plaintiffs alleged that third parties could extract the relevant data without copying Plaintiffs' software, and the court distinguished this fact from previous Ninth and Seventh Circuit cases such as Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000), where the defendants' fair use arguments were successful because such copying was the only way to achieve the desired result. | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 9th | D. Ariz. | Software (Literary) |
Bassett v. Jensen, No. 18-10576-PBS, 2020 U.S. Dist. LEXIS 82431 (D. Mass. May 11, 2020) | 2020-05-11 | 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. | Fair use not determined. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 1st | D. Mass. | Drawings, Paintings and Photographs (Pictorial/graphic/sculptural) |
Delano v. Rowland Network Communs. LLC, No. CV-19-02811-PHX-MTL, 2020 U.S. Dist. LEXIS 81374 (D. Ariz. May 8, 2020) | 2020-05-08 | 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.) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 9th | D. Ariz. | Photograph (Pictorial/Graphic/Sculptural) |
Werner v. Evolve Media, LLC, No. 2:18-cv-7188-VAP-SKx, 2020 U.S. Dist. LEXIS 106477 (C.D. Cal. Apr. 28, 2020) | 2020-04-28 | 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). | Not fair use. Plaintiff's motion for summary judgment granted. | Motion for Summary Judgment | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Harbus v. Manhattan Inst. for Policy Research, Inc., 2020 U.S. Dist. LEXIS 74568 (S.D.N.Y. Apr. 27, 2020) | 2020-04-27 | 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.) | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Wild v. Rockwell Labs, No. 4:19-CV-00919-W-RK, 2020 U.S. Dist. LEXIS 68761 (W.D. Mo. Apr. 20, 2020) | 2020-04-20 | 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. | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 8th | W.D. Mo. | Photograph (Pictorial/Graphic/Sculptural) |
Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA, 2020 U.S. Dist. LEXIS 53287 (S.D.N.Y. Mar. 26, 2020) | 2020-03-26 | 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. | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 2d | S.D.N.Y. | Tattoo (Pictorial/graphic/sculptural) |
Tresona Multimedia, Ltd. Liab. Co. v. Burbank High Sch. Vocal Music Ass'n, 953 F.3d 638 (9th Cir. 2020) | 2020-03-24 | 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. | Fair use. Affirmed. Defendant's motion for summary judgment granted. | Motion for Summary Judgment, on Appeal | 9th | 9th Cir. | Song (Musical) |
Cruz v. Cox Media Grp., LLC, No. 18-CV-1041 (NGG) (AKT), 2020 U.S. Dist. LEXIS 44474 (E.D.N.Y. Mar. 13, 2020) | 2020-03-13 | 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) | Not fair use. Plaintiff's motion for summary judgment granted. | Motion for Summary Judgment | 2d | E.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Cambridge Univ. v. Becker, No. 1:08-CV-1425-ODE, 2020 U.S. Dist. LEXIS 35134 (N.D. Ga. Mar. 2, 2020) | 2020-03-02 | 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. | Mixed result. Fair use found as to thirty-seven of the forty-eight materials in question. | Other | 11th | N.D. Ga | Educational Texts (Literary) |
In re DMCA Subpoena to Reddit, Inc., No. 19-mc-80005-SK (JD), 2020 U.S. Dist. LEXIS 37033 (N.D. Cal. Mar. 2, 2020) | 2020-03-02 | 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. | Fair use. Motion to quash granted. | Discovery Request | 9th | N.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Morris v. Wise, No. 1:19 CV 2467, 2020 U.S. Dist. LEXIS 35744 (N.D. Ohio Mar. 2, 2020) | 2020-03-02 | 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. | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 6th | N.D. Ohio | Photograph (Pictorial/Graphic/Sculptural) |
Estate of Smith v. Graham, No. 19-28, 2020 U.S. App. LEXIS 3484 (2d Cir. Feb. 3, 2020) | 2020-02-03 | 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).) | Fair use. Affirmed. Defendant's motion for summary judgment granted. | Motion for Summary Judgment, on Appeal | 2d | 2d Cir. | Song Sample (Musical) |
Hughes v. Benjamin, No. 17-cv-6493 (RJS), 2020 U.S. Dist. LEXIS 18994 (S.D.N.Y. Feb. 3, 2020) | 2020-02-03 | 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. | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | S.D.N.Y. | Motion Picture (Audiovisual) |
Comerica Bank & Tr., N.A. v. Habib, No. 17-12418-LTS, 2020 U.S. Dist. LEXIS 1343 (D. Mass. Jan. 6, 2020) | 2020-01-06 | 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. | Not fair use. Plaintiff's motion for summary judgment granted. | Motion for Summary Judgment | 1st | D. Mass. | Live Concert Recording (Musical) |
Pierson v. DoStuff Media, LLC, No. A-19-CV-00435-LY, 2019 U.S. Dist. LEXIS 188020 (W.D. Tex. Oct. 29, 2019) | 2019-10-29 | 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.) | Not fair use. Defendant's motion to dismiss denied. | Motion to Dismiss | 5th | W.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Yang v. Mic Network, Inc., 405 F. Supp. 3d 537 (S.D.N.Y. 2019) | 2019-09-23 | Defendant posted an article about the social media reaction to a New York Post article. Defendant's article included a screenshot of the Post article that contained roughly half of Plaintiff's photo, which he had licensed to the Post for the article. The court granted Defendant's 12(b)(6) motion because Defendant's use of the photo was heavily transformative (Defendant analyzed and criticized the article), Defendant used only part of the photo, and Defendant's use had no effect on the market for the photo. | Fair use. Defendant's motion to dismiss granted. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
De Fontbrune v. Wofsy, 409 F. Supp. 3d 823 (N.D. Cal. 2019) | 2019-09-12 | 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. The court determined that the use of the photographs fell within the fair use exception because the first, third, and fourth factors favored fair use. The court determined that the book, while commercial in nature, is meant for "libraries, academic institutions, art collectors and auction houses." The court said that "the mere commercial nature of a work does not create a presumption against fair use; such a presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities are generally conducted for profit in this country" (internal quotation marks omitted). Further, Defendants copied less than ten percent of the photos, and no evidence showed that the photos were the "heart" of the project. Lastly, there was no market harm as The Picasso Project and the photos have distinctly separate markets. | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 9th | N.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
Viper Nürburgring Record LLC v. Robbins Motor Co. LLC, No. 5:18-cv-04025-HLT, 2019 U.S. Dist. LEXIS 152931 (D. Kan. Sep. 9, 2019) | 2019-09-09 | 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. | Not fair use. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 10th | D. Kan. | Photograph (Pictorial/Graphic/Sculptural) |
Oyewole v. Ora, 776 F. App'x 42 (2d Cir. 2019) | 2019-09-04 | 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). | Fair use. Affirmed. Defendant's motion for summary judgment granted. | Motion for Summary Judgment, on Appeal | 2d | 2d Cir. | Poetry (Literary) |
Dlugolecki v. Poppel, No. CV 18-3905-GW(GJSx), 2019 U.S. Dist. LEXIS 149404 (C.D. Cal. Aug. 22, 2019) | 2019-08-22 | 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. | Not fair use. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Sculptural) |
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) | 2019-07-19 | 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." | Not fair use. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 4th | W.D. Va. | Photograph (Pictorial/Graphic/Sculptural) |
Oppenheimer v. Kenney, No. 1:18-cv-00252-MR, 2019 U.S. Dist. LEXIS 115066 (W.D.N.C. July 10, 2019) | 2019-07-10 | 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.) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 4th | W.D.N.C. | Photograph (Pictorial/Graphic/Sculptural) |
Tylor v. Hawaiian Springs, LLC, No. 17-00290 HG-KJM, 2019 U.S. Dist. LEXIS 111726 (D. Haw. July 3, 2019) | 2019-07-03 | 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. | Not fair use. Plaintiff's motion for partial summary judgment granted. | Motion for Summary Judgment | 9th | D. Haw. | Photograph (Pictorial/Graphic/Sculptural) |
Stross v. Stone Textile, No. 1:18-CV-454-RP, 2019 U.S. Dist. LEXIS 149424 (W.D. Tex. June 27, 2019) | 2019-06-27 | 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. | Fair use not determined. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 5th | W.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Beom Su Lee v. Roku Karaoke, No. 18-cv-8633-KM-SCM, 2019 U.S. Dist. LEXIS 102988 (D.N.J. June 19, 2019) | 2019-06-19 | 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." | Not fair use. Defendant's motion to dismiss denied. | Motion to Dismiss | 3d | D.N.J. | Song (Musical) |
Red Label Music Publ'g, Inc. v. Chila Prods., 388 F. Supp. 3d 975 (N.D. Ill. 2019) | 2019-05-30 | 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. | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 7th | N.D. Ill. | Motion Picture (Audiovisual) |
Shirman v. WHEC-TV, LLC, No. 18-CV-6508-FPG, 2019 U.S. Dist. LEXIS 83767 (W.D.N.Y. May 17, 2019) | 2019-05-17 | 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) | Fair use not determined. Defendant's motion to dismiss denied. | Motion to Dismiss | 2d | W.D.N.Y. | Motion Picture (Audiovisual) |
Furie v. Infowars, LLC, 401 F. Supp. 3d 952 (C.D. Cal. 2019) | 2019-05-16 | 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. | Fair use not determined. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 9th | C.D. Cal. | Comic Book Character (Pictorial/Graphic/Sculptural) |
Bell v. Magna Times, LLC, No. 2:18CV497DAK, 2019 U.S. Dist. LEXIS 72750 (D. Utah Apr. 29, 2019) | 2019-04-29 | 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. | Fair use. Defendants' motion to dismiss granted. | Motion to Dismiss | 10th | D. Utah | Book (Literary) |
Brammer v. Violent Hues Prods., LLC, 922 F.3d 255 (4th Cir. 2019) | 2019-04-26 | 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. | Not fair use. Reversed and remanded. Defendant's motion for summary judgment denied. | Motion for Summary Judgment, on Appeal | 4th | 4th Cir. | Photograph (Pictorial/Graphic/Sculptural) |
Philpot v. WOS, Inc., No. 1:18-CV-339-RP, 2019 U.S. Dist. LEXIS 67978 (W.D. Tex. Apr. 22, 2019) | 2019-04-22 | 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. | Not fair use. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 5th | W.D. Tex. | Photograph (Pictorial/Graphic/Sculptural) |
Clark v. Transp. Alts., No. 18 Civ. 9985 (VM), 2019 U.S. Dist. LEXIS 46274 (S.D.N.Y. Mar. 18, 2019) | 2019-03-18 | 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.) | Fair use. Plaintiff's motion to dismiss denied. | Motion to Dismiss | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723 (9th Cir. 2019) | 2019-03-15 | 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. | Not fair use. Affirmed. Plaintiff's motion for summary judgment granted. | Motion for Summary Judgment, on Appeal | 9th | 9th Cir. | Photograph (Pictorial/Graphic/Sculptural) |
Sands v. CBS Interactive Inc., No. 18-cv-7345 (JSR), 2019 U.S. Dist. LEXIS 46260 (S.D.N.Y. Mar. 13, 2019) | 2019-03-13 | 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.'" | Not fair use. Defendant's motion for summary judgment denied. | Motion for Summary Judgment | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
Peterman v. Republican Nat'l Comm., 369 F. Supp. 3d 1053 (D. Mont. 2019) | 2019-02-22 | 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. | Fair use. Defendant's motion for summary judgment granted. | Motion for Summary Judgment | 9th | D. Mont. | Photograph (Pictorial/Graphic/Sculptural) |
May v. Sony Music Entm't, 399 F. Supp. 3d 169 (S.D.N.Y. Feb. 13, 2019) | 2019-02-13 | 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." | Fair use not determined. Magistrate judge recommended denying Defendant's motion for summary judgment. | Other | 2d | S.D.N.Y. | Lyrics (Musical) |
Romanova v. Amilus Inc., No. 22-CV-8948 (VEC), 2023 WL 3061191 (S.D.N.Y. Apr. 24, 2023). | 2023-04-24 | 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." The court found 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. The court next analyzed the commercial nature of the use. The court noted the Article can not be viewed without a paid membership to defendant's website, but the court placed little significance on this fact. The court also noted there was an absence of defendant's bad faith, the original nature of the photo was creative, and the defendant used the entire photograph, which was reasonable in light of the Photo's transformative purpose. The court also found the defendant's use of the photograph was in a different market than the Photo's original purpose. Balancing the factors, the court held defendant's use was fair use and dismissed the plaintiff's claim. | Fair use. | Court ordered plaintiff to show cause why this claim should not be dismissed under the fair use exception. | 2d | S.D.N.Y. | Photograph (Pictorial/Graphic/Sculptural) |
I Dig Texas, LLC v. Creager Servs., LLC, No. 22-CV-0097-CVE-JFJ, 2023 WL 3066119 (N.D. Okla. Apr. 24, 2023). | 2023-04-24 | 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. | Fair use. | Motion for summary judgment granted. | 10th | N.D. Okla. | Photograph (Pictorial/Graphic/Scultural) |
Brody v. Fox Broad. Co., LLC, No. 22CV6249 (DLC), 2023 WL 2758730 (S.D.N.Y. Apr. 3, 2023). | 2023-04-03 | 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. | Fair use. | Defendant's motion to dismiss granted with prejudice. | 2d | S.D.N.Y. | Motion Picture |
Keck v. Mix Creative Learning Ctr., LLC, No. 4:21-CV-00430, 2022 WL 19691177 (S.D. Tex. Dec. 19, 2022). | 2022-12-19 | 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 fair use defense succeeded because the 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 Plaintiff's market value). Note: 3 months after this case was decided, the court granted defendant's attorneys fees, , Keck v. Mix Creative Learning Ctr., LLC, No. 4:21-CV-00430, 2023 WL 2652259 (S.D. Tex. Mar. 27, 2023). | Fair use. | Court granted defendant's motion for summary judgment concerning ehanced statutory damages and granted plaintiff's motion for summary judgment on all affirmative defenses except fair use and innocent infringement. | 5th | S.D. Tex. | Art |
Vila v. Deadly Doll, Inc., No. 221CV05837ODWMRWX, 2023 WL 2655908 (C.D. Cal. Mar. 27, 2023). | 2023-03-27 | 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) . | Fair use not decided. | Plaintiff's motion for summary judgement granted. | 9th | C.D. Cal. | Photograph (Pictorial/Graphic/Scultural) |
Hachette Book Grp., Inc. v. Internet Archive, No. 20-CV-4160 (JGK), 2023 WL 2623787 (S.D.N.Y. Mar. 24, 2023). | 2023-03-24 | Plaintiffs are four large publishing companies. Defendant Internet Archive (IA) is a non-profit organization dedicated to providing universal access to all knowledge. Defendant scanned and distributed 127 books protected by copyright as part its "Controlled Digital Lending" program. The court held: (1) Purpose and character in favor of plaintiffs because the work was not transformative; IA did not expand the utility of the works or provide commentary or criticism, and had commercial gain by way of donations; (2) Nature of work in favor of plaintiffs; (3) Substantiality of copied portion in favor of plaintiffs because IA copied the works in their entirety; (4) Effect on potential market in favor of plaintiffs because IA is supplanting publishers' place in ebook licensing market. Ed. note: Observers were suprised that the court considered lending by a nonprofit organization that does not charge for its services or sell advertising next to it a commercial use. The parties reached an agreement pending appeal, which is now before the Second Circuit. Multiple parties filed amicus briefs. | Not fair use. | Plaintiff's motion for summary judgement granted. | 2d | S.D.N.Y. | Book (Literary) |