IP Law Daily, COPYRIGHT—S.D.N.Y.: A compilation of ‘trending’ pet photographs held to be fair use, (Apr 25, 2023)

By Matthew Hersh, J.D.

The original photograph was used to illustrate a snake, but the secondary use was to illustrate the photograph itself.

A website that created a subscription-only article that posted a series of photographs of different animals as part as of an ostensible commentary on those images was entitled to prevail in a copyright infringement lawsuit against the owner one of those photographs because of fair use, the federal court in Manhattan has held. The court, in deciding against the photographer, notably reached its conclusion even though the website owner defaulted in the action. (Romanova v. Amilus Inc., April 20, 2023, Parker, K.).

The subject of the lawsuit was American Illustration-American Photography, or AI-AP, an organization that describes itself as “the online home for our annual competitions (Call for Entries), juried image collections (The Archive), events (The Party, BIG TALK and Illustration Week).” The website, which requires a monthly subscription of $4.95 (or annual at $49.50), reproduces a wide variety of photographs as part of contests, commentary on the photos, and other purposes.

One particular set of reproductions raised the ire of photographer Jana Romanova, a Russian-born and Netherlands-based photographer. The photographer contributed to a National Geographic article about persons in Russia who owned snakes as household pets. The specific image she licensed was a photograph of a woman with a snake wrapped around her left wrist and another snake wrapped around a portion of her torso and arm. But not long after, her complaint alleged, she noticed the photo used in an article on the AI-AP website titled “Trending: Dogs, Cats . . . and Other Pets, to Start Off 2018.”

The photographer sued the website owner and obtained a default judgment when the owner failed to appear. But that did not end the matter. Where a plaintiff obtains a default judgment, the court explained, it must nonetheless review the complaint to determine whether it stated a legitimate claim. In this case, the court determined, the central question was whether the website’s use qualified as fair use.

Fair use. The court found that the website—at least based on the complaint and the materials submitted with it—appeared to qualify as fair use. The central question, as in most fair use cases, was whether the website’s use of the photograph appeared to be transformative. In this case it was, the court noted, because it did not use the photograph for the same purpose as the photographer. The photographer’s photo was “intended to showcase persons in [her] home country of Russia that kept snakes as pets.” By contrast, the court noted, the AI-AP website concerned “the ever-increasing amount of pet photography” circulating online. Indeed, the court notes, the article aggregated a collection of ten photographs,” including—along with the photographer snake photo—“a grassy field full of dogs,” “an elderly man lovingly head-butting his orange tabby,” and “three felines photoshopped by a graphic designer to recreate famous album covers.”

With the transformative factor weighing in favor of the website, the court found, many of the other factors had little bearing on the outcome. This included the fact that the website was profitable, the photograph at issue was creative, and the entire photograph was reproduced. As to the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” this also was largely irrelevant because under Second Circuit precedent “a ‘transformative market’ does not qualify as a traditional market.” Thus, the use of the photograph qualified as fair use.

The Case is No. 1:22-cv-08948-VEC.

Attorneys: Joshua D. Vera (Sanders Law Group) for Jana Romanova.

Companies: Amilus Inc.

Cases: Copyright NewYorkNews GCNNews