Griping Blogger Can Show Photo Of Griping Target–Katz v. Chevaldina
Chelvadina griped about Raanan Katz on her blog. As is common practice for bloggers, Chelvadina included a headshot photo of Katz. The court says the photo is unflattering (I’ll let you decide).
Chevaldina found the photo on an Israeli website via a Google search and then republished it her blog, sometimes verbatim, sometimes with critical words or images. Bloggers are often loose with copyright clearances, so we see copyright lawsuits against bloggers from time to time. What stood out about this case is that Katz didn’t initially own the copyright to his headshot. Instead, a year after Chevaldina published the photo, Katz acquired the copyright and then used it as an extra vector of legal attack against Chevaldina. We’re seeing a noticeable increase of copyright acquisitions as a backdoor way to suppress content online, and this case is part of that disturbing trend.
In 2012, the court denied Chevaldina’s motion to dismiss. At the time, I wrote:
This lawsuit is almost certainly unmeritorious….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.
On summary judgment, the court again addressed the fair use issues and a magistrate judge recommended dismissing the case due to fair use:
* Nature of Use. Chevaldina’s use was non-commercial. She ran a gripe site and didn’t have any ads. It’s my position that ads would not have changed the character of the use, but courts are heavily anti-advertising, even in the context of clear editorial usage. The court also finds “the Photo was transformative because it served a very different function than did its original use” on the Israeli website.
* Nature of Work. The photo “captured Plaintiff in a public setting and was used simply to identify him.”
* Amount Used. “Depending on the topic of her blog post, Defendant copied only as much of the Photo as was needed to further her criticism. Because the copyrighted work at issue is a photograph, I find that the third factor is neutral and does not weigh either for or against a finding of fair use.”
* Market Effect. “there is no evidence that Defendant’s use of the Photo caused any market harm. To the contrary, Plaintiff has stipulated that “he and his related companies have suffered no economic harm as a result of Defendant’s infringement.” Similarly, Plaintiff has not shown that a potential market exists for the Photo or that Defendant’s use threatens the potential market. Significantly, Plaintiff disavows any interest in selling or profiting from the Photo.” The court implies that Katz’s goal–to suppress the photo’s publication as part of a copyright-as-privacy claim–categorically undercuts any argument that a licensing market would develop.
The magistrate judge concludes:
a reasonable trier of fact could reach only one conclusion: that Defendant’s use of the photograph was fair, and did not constitute copyright infringement.
This obvious outcome makes the denial of the motion to dismiss a bummer. In my opinion, all of the facts that helped the court dispose of the summary judgment motion were known and available at the motion to dismiss. So the intervening two years since the motion to dismiss was denied has consumed time, money and aggravation without adding any value.
The underlying problem is that lawsuits over headshots are stupid. We really need a categorical presumption that republishing headshots when discussing the person qualifies as fair use. Until then, I hope the court will award a 505 fee shift in this case because it was so clearly meritless (though Katz can surely afford any fee shift).
Either way, another protip to griping bloggers: even though it’s surely fair use, please don’t include headshots on your blog. It’s avoidable litigation-bait.
[Note: this court frequently cites Dhillon v. Does 1-10, 2014 WL 722592 (N.D. Cal. Feb. 25, 2014), a case I had planned to cover in quick links, which also held that a blogger's use of person's headshot qualifies as fair use.]
Case citation: Katz v. Chevaldina, 2014 WL 2815496 (S.D. Fla. June 17, 2014).
* Fair Use Protects Video Republication To Demonstrate Speaker’s Inconsistent Statements–Caner v. Autry
* Griping Blogger Protected by Fair Use But Not Section 230–Ascend Health v. Wells
* Ninth Circuit Upholds Anti-SLAPP Ruling for Blogger/Griper–Sedgwick v. Delsman
* Blogger Wins Fair Use Defense…On a Motion to Dismiss!–Righthaven v. Realty One
* Law Professor Sues Over ‘Above the Law’ Blog Posts–Jones v. Minkin