Screen shot of a news article that contained a copyrighted picture deemed fair use. YANG v. MIC

Copyright law protects original works of expression like books, music, movies, and photographs. A copyright is a set of exclusive rights granted to the creator of an original work of expression. A copyright owner is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original. If someone exercises one of these exclusive rights, without authorization, that can constitute copyright infringement. A copyright owner can respond to copyright infringement by filing a lawsuit to stop the infringement and get monetary damages. However, the rights granted by copyright law in the United States have some limitations. One of the limitations of copyright law in the United States is known as fair use. A defendant in a copyright infringement lawsuit can claim that its use of a copyrighted work is protected by fair use and not be held liable for copyright infringement.

When a court is presented with a fair use defense to a copyright infringement claim, the court analyzes four factors. Those four factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

STEVEN YANG v. MIC NETWORK INC., 18-cv-07628 (S.D.NY 2019) is case which involves a reproduction of a copyrighted photograph deemed to qualify as fair use. In April of 2017, Plaintiff took a photograph of Dan Rochkind. The photograph was then licensed to a newspaper and used in an article entitled Why I Don’t Date Hot Women Anymore about Rochkind and his dating life. The article touched a nerve and there was significant public criticism of the article. The defendant wrote a blog post about the article and included a screen shot of the newspaper’s website version of the article. The screen shot included a portion of the plaintiff’s photograph, the plaintiff sued the defendant for copyright infringement. The defendant claimed their reproduction of the photograph qualified as fair use and moved for dismissal of the plaintiff’s complaint.

The District Court noted that fair use is an affirmative defense, and therefore Defendant bears the burden of showing
that a given use is fair. An affirmative defense may be “may be adjudicated” on a motion to dismiss “where the facts necessary to establish the defense are evident on the face of the complaint.” Accordingly, when “the only two pieces of evidence needed to decide the question of fair use” are “the original version” and the allegedly infringing version, it is proper to decide the issue on a motion to dismiss.

The district court found that the defendant’s use of the photograph was transformative in three ways 1) the screen shot was used to identify the newspaper article and explain why it was controversial, 2) the screen shot was used as part of the criticism of the newspaper article, 3) the defendant’s article uses the photograph, intended show Rochkind in a positive light, in a negative light. For those reasons the district court found that the purpose and the character of the defendant’s use favored a finding of fair use. The court found that it was for the commercial benefit of the defendant, however given the strong transformative nature of the use, this factor was less significant.

With respect to the nature of the copyrighted work, the court found that the work was creative, so this factor weighed slightly in favor of the plaintiff. For the amount and substantiality of the work used, the court noted that the defendant’s reproduction cropped a significant portion of the plaintiff’s photograph. Finally, with respect the to potential effect of the use on the market or value of the plaintiff’s photograph, the court found that the defendant’s use did not create a substitute for the plaintiff’s work.

In light of the above factors, even drawing all reasonable inferences in Plaintiffs favor, the court found that Defendant’s use was fair as a matter of law and granted the defendant’s motion to dismiss.

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