UPDATE 4/19/21: The table now includes links to the full opinions! Just click on the name of the case in the left column.
Last year in the UCI Intellectual Property, Arts, and Technology Clinic, our Filmmaker Counseling team began to hear of a rising number of fair use opinions coming out of the federal courts, and we decided to embark on an exhaustive study of recent fair use decisions in copyright infringement cases. In total, we identified and analyzed seventy-two opinions issued by federal courts and made available on Westlaw or Lexis between January 1, 2019, and February 25, 2021. In our report “Fair Use Jurisprudence 2019-2021: A Comprehensive Review,” we summarize the cases and provide some analysis. An abridged version of our case summaries is available in this table.
| Case Name | Date Decided | Abstract | Resolution | Procedural Posture | Circuit | Level | Type of Copyrighted Work |
|---|---|---|---|---|---|---|---|
| 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 | District Court | Textual |
| 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." | Motion to dismiss denied. Declined to consider fair use | Motion to dismiss | 1st | District Court | Textual |
| 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." | Motion to dismiss denied. | Motion to dismiss | 9th | District Court | Multiple |
| 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. | Motion to dismiss granted on fair use grounds | Motion to dismiss | 1st | District Court | Textual |
| 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. | Motion to dismiss | Motion to dismiss | 2d | District Court | Multiple |
| 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 | District Court | Photograph |
| 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 the lower court’s grant of summary judgment to Defendant. | Motion for summary judgment | 9th | Court of Appeals | Textual |
| 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 | District Court | Photograph |
| Sands v. What's Trending, No. 20-CV-02735 (GBD) (KHP), 2020 U.S. Dist. LEXIS 236019 (S.D.N.Y. Dec. 14, 2020) | 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. (Ed. note: a Richard Liebowitz case.) | Fair use not determined. The magistrate judge recommended denying Defendant’s motion to dismiss | Motion to dismiss | 2d | District Court | Photograph |
| 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 as to fair use. | Motion for summary judgment | 4th | District Court | Photograph |
| Nat'l Comm'n for the Certification of Crane Operators v. Nationwide Equip. Training, No. 1:20-cv-483-TFM-M, 2020 U.S. Dist. LEXIS 239754 (S.D. Ala. Nov. 24, 2020) | 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/TRO | 11th | District Court | Textual |
| 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 following a bench trial. | Bench verdict | 9th | District Court | Multiple |
| 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 | District Court | 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. (Ed. note: a Richard Liebowitz case.) | Fair use. Defendant’s motion to dismiss granted. | Motion to dismiss | 2d | District Court | Photograph |
| Fellner v. Travel 4 All Seasons LLC, No. CV-19-01719-PHX-DJH, 2020 U.S. Dist. LEXIS 198638 (D. Ariz. Sep. 30, 2020) | 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 | District Court | Textual |
| 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 | District Court | Multiple |
| 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 | District Court | Photograph |
| 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 | District Court | 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 | District Court | Computer program |
| 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 | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 | District Court | 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 | District Court | Photograph |
| Bain v. Film Indep., Inc., No. CV 18-4126 PA (JEMx), 2020 U.S. Dist. LEXIS 141859 (C.D. Cal. Aug. 6, 2020) | 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. | Fair use. Defendant’s motion for summary judgment granted. | Motion for summary judgment | 9th | District Court | Motion picture |
| Kobi Karp Architecture & Interior Design, Inc. v. O'Donnell Dannwolf & Partners Architects, Inc., Civil Action No. 19-24588-Civ-Scola, 2020 U.S. Dist. LEXIS 131909 (S.D. Fla. July 27, 2020) | 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 | District Court | Architectural work |
| 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 “narryow inquiry” at that stage. (Ed. note: A Higbee & Associates case.) | Fair use not determined. Defendant’s motion to dismiss denied. | Motion to dismiss | 11th | District Court | Photograph |
| Reilly v. Louder With Crowder, LLC, No. 3:20-CV-0395-S, 2020 U.S. Dist. LEXIS 125725 (N.D. Tex. July 16, 2020) | 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 | District Court | Photograph |
| 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. (Ed. note: A Richard Liebowitz case.) | Fair use. Complaint dismissed. | Bench verdict | 2d | District Court | Photograph |
| 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 | District Court | Textual |
| 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 | District Court | Photograph |
| 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 | District Court | Pictorial/photograph/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. (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 | District Court | Photograph |
| Johnson v. Fla. State Golf Ass'n, No. 8:19-cv-3202-T-60AEP, 2020 U.S. Dist. LEXIS 93163 (M.D. Fla. May 28, 2020) | 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 | District Court | Photograph |
| Brown v. Netflix, Inc., 2020 U.S. Dist. LEXIS 92739 (S.D.N.Y. May 27, 2020) | 2020-05-27 | Plaintiffs sued Defendants for streaming a documentary that 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 documentary centered on a group of burlesque dancers, one of whom used the song in a fish-themed performance. 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." (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. Defendant’s motion to dismiss granted. | Motion to dismiss | 2d | District Court | Musical |
| 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 | District Court | Textual |
| 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 | District Court | Computer program |
| 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 judgement 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 | District Court | 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 | District Court | Photograph |
| Werner v. Evolve Media, LLC, No. 2:18-cv-7188-VAP-SKx, 2020 U.S. Dist. LEXIS 106477 (C.D. Cal. Apr. 28, 2020) | 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 | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 | District Court | Pictorial/photograph/graphic/sculptural |
| Tresóna 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. Affirming district court’s grant of summary judgment for defendant on fair use. | Motion for summary judgment | 9th | Court of Appeals | 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 | Court of Appeals | Photograph |
| 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 | District Court | Textual |
| 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. | Other | 9th | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 the district court’s grant of summary judgment in favor of Defendants. | Motion for summary judgment | 2d | Court of Appeals | 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 | District Court | Motion picture |
| 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 | District Court | 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.” (Ed. note: a Richard Liebowitz case.) | Not fair use. Defendant’s motion to dismiss denied. | Motion to dismiss | 5th | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 the district court’s grant of summary judgment in favor of Defendant. | Motion for summary judgment | 2d | Court of Appeals | Textual |
| 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 | District Court | Photograph |
| Cancian v. Hannabass & Rowe Ltd.Cancian v. Hannabass & Rowe, Ltd., Civil Action No. 7:18-cv-00283, 2019 U.S. Dist. LEXIS 121112 (W.D. Va. July 19, 2019) | 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 | District Court | Photograph |
| 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 to allow for further factual development. | Motion to dismiss | 4th | District Court | Photograph |
| 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 | District Court | Photograph |
| 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 | District Court | Photograph |
| Beom Su Lee v. Roku Karaoke, No. 18-cv-8633-KM-SCM, 2019 U.S. Dist. LEXIS 102988 (D.N.J. June 19, 2019) | 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 | District Court | 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 | District Court | Motion picture |
| Shirman v. WHEC-TV, LLC, No. 18-CV-6508-FPG, 2019 U.S. Dist. LEXIS 83767 (W.D.N.Y. May 17, 2019) | 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 to allow for further factual development. | Motion to dismiss | 2d | District Court | Motion picture |
| 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 due to the existence of material issues of fact. | Motion for summary judgment | 9th | District Court | 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 | District Court | Textual |
| 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. | Other | 4th | Court of Appeals | Photograph |
| 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 | District Court | Photograph |
| 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 is denied. | Motion to dismiss | 2d | District Court | Photograph |
| 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 the district court’s grant of summary judgment in favor of Plaintiff as to fair use. | Motion for summary judgment | 9th | Court of Appeals | Photograph |
| 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 | District Court | Photograph |
| 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 | District Court | Photograph |
| 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. The magistrate recommended denying Defendant’s motion for summary judgment as there were material facts at issue. | Other | 2d | District Court | Musical |