We have previously written about the lawsuits that can result from unauthorized uses of photographs, but on November 2, 2020, a federal trial court in New York issued a ruling regarding use of a photo from a social media site that was “fair use” under the copyright laws. (Boesen, v. United Sports Publications, Ltd., 20-CV-1552 (ARR) (SIL) (E.D.N.Y. Nov. 2, 2020).
The case began on December 6, 2019, when professional tennis player Caroline Wozniacki announced her retirement from the sport on her social media page. Her post included a cropped low-resolution version of a photograph taken by plaintiff, a professional photographer. The announcement made headlines in the sports world, and that same day, sports news publisher United Sports Publications ran an article on the Long Island Tennis Magazine website covering Ms. Wozniacki’s retirement announcement. That article included an “embedded” copy of her social media post, including the photo. The photographer sued the sports publisher for copyright infringement of his subsequently-registered photograph. The defendant filed a motion to dismiss the complaint, which the court granted.
In the U.S., the federal copyright law lists the categories and elements for the “fair use” affirmative defense to a claim of copyright infringement. 17 U.S.C. § 107. Section 107 specifically includes “news reporting” among the categories eligible for a finding of “fair use.” The more challenging question was whether United Sports Publications could show that the balance of Section 107’s four factors weighed in its favor:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted 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 the copyrighted work.
The court reviewed each of the four factors and found that each factor weighed in favor of the defendant sports publication.
1. Purpose and character of use
The court spent the most time on this factor, to determine whether the publication’s use of the photo was transformative. The U.S. Supreme Court had described this element as : “The central purpose of this investigation is to see … whether the new work merely supersede[s] the objects of the original creation … or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message ….” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
Here, the court found that, consistent with some prior cases, “use of a copyrighted photograph may be appropriate where ‘the copyrighted work is itself the subject of the story, transforming the function of the work in the new context.’” (citation omitted) The court found that the publication’s embedding of the social media “post announcing her retirement—which incidentally included the photograph—because ‘the fact that [Wozniacki] had disseminated’ that post ‘was the very thing the Article was reporting on.’” (citation omitted) This angle sufficiently transformed the work to support a defense of fair use.” The court ruled that this factor strongly favored the sports publication.
2. Nature of the copyright work
Although this factor carries “minimal weight,” the court had to decide whether the photograph was creative and whether it received greater protection as an unpublished work. Although the court found that the work had some creative elements, the court decided that the photograph did not “incur the same protections as an unpublished work because plaintiff has published it on his own social media page and website, in addition to Wozniacki’s sharing it” on her social media account. Therefore, this factor weighed slightly in favor of the defendant.
3. Amount and substantiality of the portion used
For the third factor, the court had to consider the proportion of the original work used to determine “whether the quantity and value of the materials used[ ] are reasonable in relation to the purpose of the copying.” (citation omitted) The court found that Ms. Wozniacki had cropped the photographer’s original photo, and had used a low-resolution version of it in her post—which factors favored the defendant. In addition, the article used a copy of the social media post, which included several other aspects of the post, such as her avatar and text, and meant that the defendant could not control how the photo would be presented. Finally, the court returned to the purpose of the article: covering the fact that Ms. Wozniacki had announced her retirement on social media. Purchasing a separate photo would not serve this purpose. Thus, the court found, this factor favored the defendant.
4. Effect on the potential market and value of the work
The court found that the publication’s use of the photo was unlikely to have much of an effect on the potential market and value of the photo for two reasons. First, because the photo appeared alongside text as part of the article, it was “implausible” that the use would compete with plaintiff’s photos. Second, the court again pointed to the cropped and low-resolution nature of the photo in the social media post, finding it a “poor substitute” for the original photo. This factor also weighed in favor of the defendant.
As a result, the court did not have to engage in any balancing of the factors, because all four factors favored the defendant, so the defendant met its burden of showing “fair use.” Therefore, the court granted the defendant’s motion to dismiss the lawsuit for failure to state a claim.
Fair use can be difficult for a defendant to prove. The court noted that “newsworthiness alone does not trigger fair use” (slip op n.5), but that the purpose of the use of the copyrighted work was important. Here, the court emphasized that the purpose of the article was news coverage of the fact that Ms. Wozniacki announced her retirement on social media. Had she instead call a press conference, the result of this case may well have been different.