Copyright cannot be used to censor an unflattering picture

By Marie-Andrée Weiss

The Eleventh Circuit affirmed on 17 September 2015 the District Court for the Southern District of Florida, which had granted last year summary judgment to Appellee Chevaldina based on her fair use defense.

On September 17, 2015, the Eleventh Circuit affirmed a District Court summary judgment ruling in Katz. V. Chevaldina. Appellee Chevaldina had prevailed in the district court based on a fair use defense. Appellant Raanan Katz had filed a copyright infringement suit against her over the unauthorized use of a photograph (see here for a TTLF post about the 2014 ruling).


Registering a copyright in order to take down an unflattering picture

At stake was the use by Chevaldina, in several of her blog posts, of a photograph protected by copyright. Katz owns shopping centers and is a part owner of the Miami Heat basketball team. Chevaldina is a former tenant of Katz, and not a happy one. She created a blog to write about him and his allegedly unfair business practices, and used a photo of Katz she had found on Google image. to illustrate several posts in three different ways: without modifying it, by adding captions to it and by cropping and pasting it into cartoons mocking Katz.

The photograph had been taken by Seffi Magriso while Katz was watching a basketball game in Israel, and had been published on the web site of the Israeli newspaper Haaretz to illustrate an article about Katz. It shows Katz slightly sticking his tongue out and is rather unflattering. Indeed, Katz found the photo “ugly”, “embarrassing” and “compromising.” It is not surprising that Chevaldina used it to illustrate “several scathing blog posts” about Appellant and his business practices, and Katz took umbrage at this use.

When Katz discovered the blog and the use of the photo, which Chevaldina had found on Google Image, he filed a defamation suit against Chevaldina. He then had Magriso assign his copyright to him and filed a separate copyright infringement suit against Chevaldina. It seems that Katz had acquired the copyright of the photograph and registered it with the U.S. Copyright Office for the sole purpose of suing Chevaldina.

The defamation suit was ultimately tossed out by the Florida Court of Appeals, and so the copyright infringement suit was the only way left for Katz to have the photograph taken down. The district court granted summary judgment to Chevaldina. Katz appealed.


The photograph is protected by fair use

The Eleventh Circuit weighed the use of the photograph in the light of the four fair use factors of Section 107 of the Copyright Act: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount of the copyrighted work used and (4) effect on of the use on the potential market or value of the copyrighted work, and the court found the use to be fair use.

As for the first factor, the purpose and character of the use, the Eleventh Circuit found that the district court had been right in finding the use to be noncommercial and transformative. The photograph was used to illustrate blog posts, which criticized Katz, his business and his attorneys. Chevaldina’s purpose was not commercial, but rather was to educate others about “the alleged nefariousness of Katz.” She did not gain financially from the blog posts, and, while having the intention to write a book about her dealings with Katz, this alone did not make the blog a commercial venture. Also, Chevaldina’s use of the photograph was transformative, as “she used Katz’s purportedly “ugly” and “compromising” appearance to ridicule and satirize his character.” The first factor weighed in favor of fair use.

As for the second factor, the nature of the work, the Eleventh Circuit noted that the photograph “is merely a candid shot in a public setting, and there is no evidence…that Magriso…attempted to convey ideas, emotions, or in any way influence Katz ‘s pose, expression, or clothing.” The Eleventh Circuit agreed with the district court that the nature of the copyrighted work was “primarily factual” and found the second factor to weigh in favor of fair use.

The third factor, the amount of the work, did not weigh for or against a finding of fair use, even if Chevaldina used the entire photograph without altering it, as copying less of the image “would have made the picture useless to [her] story that Katz is a predatory commercial landlord.”

The fourth factor, the effect of the use on the potential market, weighed in favor of fair use, as “[d]ue to Katz’s attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work.” The Eleventh Circuit also noted that it was very unlikely that Katz would ever change his mind and decide to publish the photograph, considering how much he dislikes it.

As weighting of the four fair use factors “tilt[ed] strongly in favor of favor of fair use”, the Eleventh Circuit affirmed the district court’s grant of summary judgment.


A concerning trend, using copyright to censor speech

Will this case temper the ardor of some to use copyright as a way to censor speech? Indeed, we have recently seen several, fortunately unsuccessful, attempts to use copyright to take down online criticism, such as City of Inglewood v. Teixeira, or Lee v. Makhenevich. Copyright laws were not enacted by Congress to suppress free speech. It is a concerning trend, which may fade away as plaintiffs realize that filing such suits only point the spotlight at the speech they are trying to suppress.