IP Law Daily, COPYRIGHT—E.D. La.: Website failed to show fair use of unlicensed photographs on political commentary website, (Sep 22, 2023)

By Patricia K. Ruiz, J.D.

The court declined to address claims the website removed copyright management information from the photos.

The statutory factors weighed against finding a website’s fair use of unlicensed photographs, held the U.S. District Court for the Eastern District of Louisiana. The court found no dispute that the website received money from its use of the photographs by way of advertising revenue generated by the number of views garnered by each article and that the non-transformative use of the creative photographs outweighed the fact that money received was relatively meager. The court also determined the use was a clear-cut example of a market substitute, regardless of website’s intentions (Dermansky v. Hayride Media, LLC, September 21, 2023, Vitter, W.).

Allegations. A professional photographer licenses her work to others for publication pursuant to either written or oral licensing agreements. Hayride Media, LLC, operates an online news blog and website offering conservative political commentary covering Louisiana and national politics and current affairs. Hayride is principally managed by one person out of his home office, relying on content authored by him or by uncompensated guest bloggers. The photographer alleges Hayride used without payment or approval and on several occasions her May 1, 2014, photograph of former S. Tammany Councilman Jake Groby and her August 18, 2016, photograph of Baton Rouge community activist and political candidate Gary Chambers. Hayride also failed to give the photographer credit for the photographs. The photographer brought claims for direct copyright infringement and for removal and/or alteration of copyright management information (CMI) under the Digital Millennium Copyright Act. She alleged Hayride willfully and intentionally published the photographs without her consent, with full knowledge of her copyright, and intentionally removed her CMI from the photograph to facilitate its infringement of her rights.

Motions for partial summary judgment. Hayride filed a motion seeking dismissal of the CMI-stripping claims for failure to state a claim upon which relief may be granted, which the court denied. Hayride then filed an answer raising an affirmative defense of fair use as to the photographer’s infringement claims and asserting a compulsory counterclaim for misuse of copyright and invalidity of copyright registrations.

In the instant motion for summary judgment, Hayride sought dismissal of the copyright infringement claim son the grounds that Hayride’s admitted uses of the photographs constitute fair use within the meaning of 17 U.S.C. §107, as well as the dismissal of the CMI stripping claims due to lack of evidence to support such claims. Hayride argued that its use of the photographs was fair use because (1) its use was transformative in nature; (2) it acted in good faith; (3) the photographs are more informational than creative and artistic in nature; (4) Hayride used as much of the photographs as was reasonable and feasible to do; and (5) its use did not affect the market for photographs because Hayride and the photographer serve different markets and Hayride has not attempted to license the images. Alternatively, Hayride argued that if the court does not find Hayride’s use of the photographs to constitute fair use, the court should declare Hayride to be an innocent infringer, thereby reducing statutory damages award. In a cross-motion for partial summary judgment, the photographer argued the court should rule that Hayride’s use of the photographs did not constitute fair use and deny Hayride’s motion as to the CMI claims because of ongoing discovery and unresolved material factual disputes.

Fair use analysis. The court found Hayride had not demonstrated fair use and granted summary judgment in favor of the photographer on the issue. The court found no dispute that Hayride received money from its use of the photographs by way of advertising revenue generated by the number of views garnered by each article. The non-transformative use of the photographs outweighed the fact that money received was relatively meager, the court found, noting that the use of the image unaltered to accompany criticism does not render the use transformative. The court further stated good faith alone does not excuse infringement and that, even if the court were to find good faith on Hayride’s part, Hayride has not demonstrated that it is entitled to a fair use defense. Additionally, the creative nature of the photographs weighed in favor of the photographer, the court found. Finally, in response to Hayride’s argument that the use did not affect the market for photographs, the court found this situation to be a clear-cut example of a market substitute, regardless of Hayride’s intentions. Thus, the court found all four statutory fair use factors weigh in favor of the photographer and against a finding of fair use by Hayride.

CMI claims. The court declined to grant summary judgment as to the CMI claims due to outstanding material factual disputes as to where Hayride first found the photographs and whether the photographs contained any CMI data regarding the copyright.

The Case is No. 2:22-cv-03491-WBV-KWR.

Attorneys: Andrew T. Lilly (Lilly, PLLC) for Julie Dermansky. Patrick Hannon Patrick (Patrick Miller, LLC) for Hayride Media, LLC.

Companies: Hayride Media, LLC

Cases: Copyright TechnologyInternet LouisianaNews GCNNews