The Southern District of New York has issued an opinion in a case brought by photographer Rebecca Walsh against Townsquare Media. Walsh, a professional photographer, sued Townsquare for copyright infringement over their alleged use of her copyrighted photograph without a license. The defendant filed a motion for judgment on the pleadings, which the court granted. The court concluded that “[d]efendant’s publication of the Photograph constituted fair use.”
Walsh licenses her photographs for online and print media to use. In September 2018, Walsh photographed rapper Cardi B at a Tom Ford fashion show in New York City. She made her photographs available to license through Getty ImagesA few days after the fashion show, the defendant ran an article about a collaboration between Cardi B and Tom Ford, and used Walsh’s image in the article. The plaintiff said the defendant “‘expropriated’ the Photograph and ‘displayed’ it in the Article.” Townsquare Media said the Post was “embedded.”
The court noted that “in the current version of the Article, the two Instagram posts that remain displayed link directly to Instagram when clicked on, indicating they have been embedded.” The second image was from Cardi B’s account, which was a screenshot of another post. A third post was a compilation of images, including the photograph at issue. After Walsh filed the lawsuit, the defendant removed the embedded Instagram from the article.
The court relied on the Copyright Act, which “grants a copyright owner the exclusive rights to authorize the reproduction, distribution, and preparation of derivatives of the owner’s work,” and the doctrine of fair use, where “a defendant who otherwise would have violated one or more of these exclusive rights may avoid liability if [it] can establish that [it] made ‘fair use’ of the copyrighted material.” The four non-exclusive factors that define fair use are: “(1) the purpose and character of the use, (2) the nature of the work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of copyrighted work.” For example, fair use can constitute, “criticism, comment, news reporting, teaching, scholarship, and research.” The burden was placed on the defendant to show that their use of the photograph was fair.
The court first examined if the use “merely supersedes the objects of the original creation, or instead adds something new…it asks, in other words, whether and to what extent the new work is transformative.” The court said while news reporting can constitute fair use, it does not guarantee fair use; noting that “it is not fair use to republish a photograph of a celebrity or public figure intended to generically accompany an article about that person or to describe the event depicted in the photograph.” The court found that this factor favored the defendant because “the Article uses the Photograph for an entirely different purpose than originally intended. The Photograph was taken to ‘depict Cardi B at Tom Ford’s fashion show.’” Meanwhile, the article is about Cardi B’s lipstick collaboration with Tom Ford. Therefore, the court states that “defendant did not publish the Photograph simply to present its content. It did not use the Photograph as a generic image of Cardi B to accompany an article about Cardi B…or as an image of her at Tom Ford’s fashion show alongside an article about the fashion show.”
The third fair use factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The court stated that “[a]s a quantitative matter, the Post included an uncropped, though resized, version of the Photograph. As a qualitative matter, however, although Plaintiff complains that Defendant could have used any other image of Cardi B to accompany its article or requested a license from Plaintiff, the Post is the only image that could have accomplished XXL Mag’s journalistic objective of describing a social media story and providing readers with the relevant posts. Even the Photograph itself, on its own, would not have been a reasonable substitute.” Therefore, the court concludes that “no more was taken than necessary.”
The fourth element to fair use is the “potential market for or value of the work.” The court said “because the photograph did not appear on its own, but as part of the Post, alongside text and another image, it is implausible that the defendant’s use would compete with Plaintiff’s business or affect the market or value of her work.”
The court concluded that the defendant’s use of the photograph was fair use, granting the defendant’s motion.
Walsh was represented by Liebowitz Law Firm. The defendant is represented by Davis Wright Tremaine.
Recently, numerous photographers have filed suits against media outlets for copyright infringement, claiming the outlets did not have a license to use their photographs. Microsoft, Sinclair Television, Vox Media, Yahoo, and other companies have been sued.