Fair Use May Prevent Copyright from being Used as Censorship Tool

By Marie-Andrée Weiss

Judge Chris McAliley from the U.S. Southern District Court of Florida recommended on June 17, 2014, that the court grant summary judgment to a blogger who had used a photograph of a Florida businessman, to which he holds the copyright, to illustrate a blog post about him. The case is Raanan Katz v. Irina Chevaldina, 12-22211-CIV -KIN G/M CAL1LEY.

Plaintiff Raanan Katz owns shopping centers and a minority stake in the Miami Heat professional basketball team. Defendant Irina Chevaldina maintains two blogs highly critical of Plaintiff and his business practices. She used several times an unflattering photograph of Plaintiff to illustrate posts criticizing and deriding him. The photograph had been first published by the Israeli newspaper Haaretz, albeit the parties dispute whether it was first published in its online or offline edition.

After Chevaldina used the photograph on her blog, Plaintiff entered into a copyright assignment agreement with the photographer to assert his rights as a copyright owner. He then filed a copyright infringement suit against Chevaldina, and registered the copyright. When he notified Chevaldina of the copyright registration, she removed the photo from her blogs.

Chevaldina moved for summary judgment claiming fair use. Fair use is an affirmative defense to copyright infringement if the use is done for certain purposes such as criticism, comment or research. It is recognized by Section 107 of the Copyright Act which provides four factors that the courts may consider to determine whether a particular use was fair: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market. Fair use is however, always a mixed question of law and fact.

Judge McAliley found the first factor to weigh in Defendant’s favor. He noted that the blog posts using the photograph all criticized Plaintiff and commented about him and, as such, were “criticism and commentary” under Section 107. He also found the use to be non-commercial and transformative. Judge McAliley quoted the Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., where the Court explained that the first factor central to the investigation must aim at determining whether the new work merely supersedes the original work or if the use is instead transformative. Judge McAliley compared Chevaldina’s use of the photo with its other use, as made by Haaretz, the Israeli newspaper. Haaretz had used it to illustrate an article which had written favorably about the Plaintiff, whereas Chevaldina, “in sharp contrast,” had used it to illustrate blog posts criticizing the Plaintiff, even derogatory posts. Therefore, Chevaldina had not merely used the photograph to identify Katz, her use was transformative. Judge McAliley cited the recent Northern District of California Dhillon v. Doe case, where Harmeet K. Dhillon, California Republican Party Vice Chairman, had sued an anonymous blogger who had used one of her headshots, of which she owned the copyright, to illustrate a post critical of her. The court had found the use transformative, noting that “the defendant used the… photo as part of its criticism of, and commentary on, the plaintiff’s politics. Such a use is precisely what the Copyright Act envisions as a paradigmatic fair use.”

Judge McAliley also found the second factor, the nature of the copyrighted work, to weigh in the Defendant’s favor. The courts consider mainly whether the original work was factual or creative and whether it had been previously published. In this case, it had already been published by Haaretz, and Judge McAliley is of the opinion that the photo is factual, as that there is no evidence that the photographer had at all influenced the Plaintiff’s pose or expression when he took the picture.

When considering the third factor, the amount of the work used, Judge McAliley noted that even though Chevaldina had sometimes used the entire photo, sometimes only a portion, he had “copied only as much of the [p]hoto as was needed to further her criticism.” As the work is a photograph and thus it would not have been feasible for Chevaldina to copy less than the entire work, Judge McAliley found the third factor to be neutral.

Finally, the fourth factor, the effect of the use upon the potential market, also weighed in favor of Chevaldina. Katz had made no showing that there is a potential market for the photograph and he even testified that he had registered the copyright in order to “stop this atrocity” and to make a “correction of a mistake that happened.” Even if Katz could one day change his mind and publish the photograph, that possibility was “remote” according to Judge McAliley.

For all these reasons, Judge McAliley concluded that Defendant’s use of the photograph was fair and therefore recommended that the court grant Chevaldina’s motion for summary judgment, and to deny the Plaintiff’s motion for summary judgment.