IP Law Daily, COPYRIGHT—S.D. Fla.: Too early to evaluate fair use factors in aerial photo case, (Jun 15, 2026)

By Sherri M. Schroeder, J.D.

Because all the fair use factors were either inconclusive or weighed in the photographer’s favor, the court was unable to determine whether inclusion of the photo in the mini-documentary constituted fair use.

A district court in Florida denied a motion to dismiss made by Rakontur LLC, a movie production studio located in Miami Beach, and a documentary film maker (Rakontur) against the claims of an independent travel, aerial, and concert photographer. The photographer claimed that Rakontur copied his aerial photograph of the International Links Melreese Country Club in Miami, Florida, removed its copyright management information, and then included it in a mini-documentary video about a controversial proposed real estate development at the club. Although Rakontur moved to dismiss the claims made against it under 17 U.S.C. §§ 106 and 1202 on the grounds that the alleged copyright infringement was fair use, the district court denied the motion. Noting that courts in its district routinely find that consideration of a fair use defense is premature at the motion-to-dismiss stage, the court noted its review of the photographer’s complaint and the mini-documentary compelled the same result since the photographer had not set forth a prima facie case involving fair use. Per the court, consideration of the factors laid in 17 U.S.C. § 107 “underscores that [Rakontur’s] fair use defense hinges on factual determinations, which the Court is unable to make at this stage.” Therefore, the court denied the motion to dismiss (Oppenheimer v. Rakontur LLC, No. 1:25-cv-24798-RAR (S.D. Fla. Jun. 12, 2026)).

Commercial purpose. The court first found that it lacked the factual record at this stage of litigation to determine whether consideration of the commercial and reputational benefits conferred to Rakontur by its use of the video was warranted or whether such benefits were too attenuated. Therefore, the first factor in establishing a prima facie fair-use case was inconclusive. The photographer had argued that Rakontur committed the alleged violations for purposes of advertising and promoting their mini-documentary, while Rakontur argued that the purpose and character of the use was transformative and non-commercial, with the educational purpose of the mini-documentary weighing heavily in favor of fair use.

Nature of work. Next, the court considered the copyrighted work's nature and whether it was factual or creative. Citing a “clear disagreement” as to whether the work in question was informational or creative, the court found this factor to cut against deciding fair use at this point in the proceedings. Here, Rakontur argued there was nothing artistic about an aerial shot of a golf course, while the photographer stressed the inherent creative choices in professional photography, including angle, framing, lighting conditions, time of day, and composition.

Amount and substantiality. Rakontur argued the third factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole—was neutral, as the final film used the entire photo for only two seconds to display the Melreese site and the photograph was not meaningfully divisible from the film as a whole. The photograph pointed to caselaw holding the greater the portion of the copyrighted work taken, the less likely the use qualifies as fair. The court found this factor to be either neutral or weigh in the photographer’s favor.

Effect on market. The photographer argued the fourth factor, the effect of the use on the potential market for the work, weighed in his favor because he “suffered and will continue to suffer monetary damages, irreparable injury to his business, reputation, and goodwill, and dilution in the marketplace.” Although Rakontur argued there was no reason to believe the documentary usurped the market for the photograph, the court found that it was Rakontur’s burden to establish a fair use basis, not the photographer’s burden to show the market damage.

Conclusion.Ultimately, the court found the fair use factors were either inconclusive or weighed in the photographer’s favor. Because the facts on record were not sufficient to evaluate each of the fair use statutory factors, the court was unable to determine whether inclusion of the photograph in the mini-documentary constituted fair use. Because the fair use affirmative defense “will benefit from further factual development,” the court denied the motion to dismiss but permitted Rakontur to once again raise the defense at the summary judgment state with the benefit of a complete record.

The Case is No. 1:25-cv-24798-RAR.

Judge: Ruiz, R.

Attorneys: Sanje Victoria Lara (SRipLaw PA) for David Oppenheimer. James George Sammataro (Pryor Cashman LLP) for Rakontur LLC.

Companies: Rakontur LLC

Cases: Copyright FloridaNews