Fair Use Protects a Highly Cropped Photo–Harbus v. Manhattan Institute

Harbus is a photographer. He owns the copyright to a photo of Gov. Cuomo. The Manhattan Institute is a conservative think tank. One of their fellows published an article in the New York Post (you can see the full photo at issue there). The NY Post licensed the Harbus photo to illustrate the article. The Manhattan Institute then reposted the article on its website under its “Publications: Commentary” section, but with only a part of the photo visible:

Many of you surely had the same reaction I had to this screenshot: “no copyright lawyer in their right mind would file a lawsuit over this sliver of the photo.” The photo depiction is darkened, doesn’t reveal the photo’s subjects (just Cuomo’s hands), and is overlaid with the article headline and metadata. Yet, this lawsuit actually does make sense once you know that the photographer’s lawyer is Richard Liebowitz. Liebowitz’s lawsuits have led to impressive outcomes for defendants, including this one.

The court finds fair use on a motion to dismiss:

  • Nature of the use. The Manhattan Institute transformed the photo by using it for a different purpose: to educate the public about the institute’s work and provide proof of publication. Also, the Manhattan Institute’s republication of its article advances the fair use goals of research, scholarship, and education. It’s immaterial that the Manhattan Institute didn’t further comment on the photo. Furthermore, the Manhattan Institute is a non-profit organization and didn’t attempt to profit from the photo.
  • Nature of the work. The photo was factual and informational, and it had been published in the NY Post.
  • Amount and substantiality of portion used. “the Manhattan Institute only displayed a significantly cropped and darkened version of the Photograph on its Website.” To emphasize how this lawsuit wasn’t close, the court adds: “given the purpose of the Manhattan Institute‚Äôs use of the Photograph, it would have been arguably reasonable for it to display the entirety of the Photograph in order to educate the public about its work and document its publication.”
  • Market effect. The Manhattan Institute isn’t a media company and didn’t use the photo to illustrate an independent news story. Also, “it is implausible that potential buyers would opt to license the significantly cropped and darkened version of the Photograph, further obscured by overlaid text as displayed on the Website, rather than the original Photograph.”

This is not the first time that a Liebowitz case has lost on fair use grounds on a motion to dismiss (e.g., Yang v. Mic). That used to be relatively rare, but Liebowitz’s cases are adding to that genre.

This case brought to mind Righthaven, another repeat copyright litigant that also lost fair use on motions to dismiss. Righthaven brought poorly selected cases against sympathetic defendants. In this case, the cropping was so significant that claiming infringement doesn’t pass the smell test; and going after a non-profit think tank doesn’t win any sympathy points. As with Righthaven’s denouement, it seems inevitable that the Liebowitz litigation enterprise will end poorly. Given this case’s low merit, I’ll be curious if this judges shifts fees per 17 USC 505. When the fee shifts start piling up against a serial copyright litigant, the enterprise’s profitability quickly collapses.

Case citation: Harbus v. Manhattan Institute for Policy Research, Inc., 2020 WL 1990866 (S.D.N.Y. April 27, 2020)