IP Law Daily, COPYRIGHT—2d Cir.: Court can sua sponte raise fair use defense even after a defendant fails to appear, (May 27, 2025)

By Matthew Hersh, J.D.

But the district court in this case, while appropriately raising the defense, improperly applied it.

A website that purloined a photo of a woman posing with two exotic animals and republished it as part of a photo story on the increasing use of snakes in social media did not make a fair use of the underlying work, the U.S. Court of Appeals for the Second Circuit has held. The court’s decision, in a lengthy treatise written by one of the federal jurists most influential in the area of fair use law, also made clear—albeit over the dissent of one panel member—that a district court could sua sponte raise the fair use defense even where a defendant had failed to appear in the action (Romanova v. Amilus Inc., No. 23-828 (2d Cir. May 23, 2025)).

The lawsuit was brought by Jana Romanova, a professional photographer and Russian citizen who took a photograph of a Russian woman with two snakes—one wrapped around her left hand, and another crawling up her torso. She later licensed National Geographic Magazine to publish the work in an article entitled “Intimate Photos of People and Their Beloved Pet Snakes.” Shortly after National Geographic published the photo, however, the work showed up on the website www.ai-ap.com under the title “Trending: Dogs, Cats... and Other Pets, to Start Off 2018.”

The photographer sued Amilus Inc., the operator of the website, for copyright infringement. After the website operator failed to appear, the photographer moved for default judgment. However, the district court, raising sua sponte the question of fair use, concluded that “the article focused on the overall trend of pet photography online, not the trend of humans adopting snakes as domestic pets.” In light of this transformative use, the court found, the complaint would be dismissed.

The photographer appealed the dismissal, leading to this opinion.

Fair use. The court of appeals, in a panel opinion by Judge Pierre Leval, reversed the district court. The court’s scholarly opinion recited the facts of over one dozen cases in which courts of appeals had found fair use—including the Supreme Court’s recent opinion in Warhol Foundation v. Goldsmith—and noted that for copying to count as fair use, “there must be justification for copying.” Here, the court noted, the only reason given by the district court to explain its conclusion was that the website operator “perceived a growing trend on the internet to publish photos of people with pets.” Such an observation, even assuming it to be true, the panel noted, “does not justify unauthorized copying and distribution of copyright protected expression.”

The court also emphasized that the district court erred in a second way by finding transformative use. The district court found such a use, the court of appeals noted, because the website ostensibly communicated the fact that there was a growing trend on the internet to publish pet photos—a message, the district court believed, was not communicated by the original image. “This misunderstood the test for transformativeness,” the court of appeals concluded. “The test turns on whether the copying of the original communicates a message that differs from the message of the original—not whether the copier separately declares such a message.” Here, the republication of the snake image itself did not show that there was a growing trend to publish pet photos online, the court noted. Copying could not be considered transformative, the court of appeals observed, “merely because the copier, separate from the act of copying, asserted a fact about the original not asserted by it.” There was nothing transformative about website’s use.

The other fair use factors did not change the outcome, the court of appeals noted. As for the second factor, the court noted, the photo was an artistic work and “the message it communicates is identically replicated by the message communicated by the Defendant’s copy.” As for the third factor, covering the amount and substantiality of the taking, the court noted, the underlying work was taken as a whole. Finally, as to market effect, the court noted, the unauthorized distribution of the work “diminished the value of Plaintiff’s copyright by diminishing the likelihood that others would seek and pay for a license to publish the Photograph.” Thus, because “no valid reason supported the district court’s conclusion that Defendant’s copying of Plaintiff’s work was a fair use,” the court concluded, the default judgment should have been granted.

Sua sponte application of fair use doctrine. But although the court of appeals disapproved of the district court’s conclusion on fair use, it did not question the procedure by which the court raised the issue. The photographer argued that because the website operator did not appear in the case, it had waived any right to have the fair use defense heard. But there was “no categorical rule barring a court from considering an affirmative defense available to a defaulting defendant,” the court of appeals noted. Indeed, the court found, a district court’s “overly rigid refusal to consider an affirmative defense sua sponte can make a lawsuit an instrument of abuse”—particularly where the defendant is a small corporation that does not have the means to defend itself or where “unscrupulous plaintiffs” bring claims barred by statutes of limitations or in jurisdictions where the defendant has no presence. “A defendant’s default does not necessarily mean that the defendant has insouciantly snubbed the legal process,” the court concluded.

Concurring opinion. Judge Sullivan wrote separately to express disagreement with the majority’s reasoning, although he agreed with the result. “While I agree with the majority that the district court erroneously dismissed Romanova’s copyright infringement claims, I would reverse on a narrower ground, without wading into the merits of Amilus’s unasserted fair use defense,” Judge Sullivan wrote. “In my view, the district court procedurally erred in sua sponte raising the affirmative defense of fair use on behalf of a non-appearing defendant, which is reason enough on these facts to reverse and remand the district court’s order.” He added, “Here, taking the allegations in Romanova’s complaint as true, I am quite certain that Romanova has established a prima facie claim for copyright infringement.” Additionally, “Had Amilus appeared below, it could have asserted fair use as an affirmative defense … however, it chose not to do so despite having been served,” Judge Sullivan explained.

In dismissing the complaint on the basis of fair use, Judge Sullivan reasoned, “the district court disregarded its obligation to accept all of Romanova’s factual allegations as true and draw all reasonable inferences in her favor.” Judge Sullivan said that he would reverse the district court’s judgment and remand with instructions to enter a default judgment against Amilus.

The case is No. 23-828.

Judge: Leval, P.

Attorneys: Renee Jennifer Aragona (Sanders Law Group PLLC) for Jana Romanova.

Companies: Amilus Inc.

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