Blogger Can’t Defeat Copyright Infringement Claim on Motion to Dismiss–Katz v. Chevaldina

By Eric Goldman

Katz v. Chevaldina, 2012 WL 5245401 (S.D. Fla. October 5, 2012). The original complaint.

This is a high-profile case (and part of an ongoing litigation battle between the parties). Raanan Katz is a Florida real estate developer and part owner of the Miami Heat basketball team. Irina Chevaldina blogged criticial remarks about Katz and included a headshot of Katz. I’m not 100% sure, but I believe Katz didn’t initially own the headshot’s copyright but instead acquired it later. If so, this case is in the vein of Scott v. WorldStarHipHop. As copyright owner of the headshot, Katz sued Chevaldina for copyright infringement.

This lawsuit is almost certainly unmeritorious. See, e.g., Sedgwick v. Delsman (another lawsuit over a griping blogger including headshots). But it’s not easy to dispose of unmeritorious copyright cases early. Fair use defenses don’t normally support 12(b)(6) motions to dismiss because they are so fact-intensive.

We’ve seen a couple exceptions recently. The defendant cited the recent Seventh Circuit ruling in Brownmark v. Comedy Partners, the South Park “What What (in the Butt)” parody case. Not only was the 7th Circuit’s ruling garbled, but I doubted it was going to be a watershed precedent (which is why it only made our quick links). The court didn’t discuss Righthaven LLC v. Realty One Group, Inc., another recent example of a blogger winning fair use on a motion to dismiss.

Still, given how rare cases like Brownmark and Realty One are, it’s not surprising that the court denied Chevaldina’s motion to dismiss the copyright claim. A much better test will come on the defendant’s summary judgment motion, which the judge should grant–and add a fee-shift to the defendant for bringing such an unmeritorious case. I imagine the plaintiff can afford the fee-shift, but it would be a useful caution to other plaintiffs that enforcing copyrights in headshots, especially against gripers, is a terrible waste of society’s resources.

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