Blogger’s Photo Republication Isn’t Fair Use–Golden v. Grecco

March 13, 2021 · by · in Copyright

This case involves a photo of Lucy Lawless as Xena. The TV studio hired Michael Grecco to take the photo and paid him $25k for his services. Grecco retained the photo’s copyright, and he made the photo available for licensing through Getty. It was licensed 11 times over the years, generating a total of $3.94 in licensing fees.

Golden runs a pop culture blog called “Film Combat Syndicate.” He blogged about rumors that Xena would be rebooted and included the Xena photo, which he copied from a Tumblr blog. Golden says he thought the photo was “a free, promotional photograph of Xena on Tumbler [sic] posted with permission and free to use.”

Grecco’s attorney notified Golden of the alleged infringement. Golden removed it and apologized. The attorney sent a demand for a $25k settlement. Golden sued for a declaratory judgment (to control venue). Grecco counterclaimed for infringement.

Grecco easily established a prima facie case of infringement. Golden primarily defended on fair use:

  • Nature of Use. Golden claimed that his use of the photo to discuss a possible reboot is transformative. The court says this is nothing like a news reporting situation; Golden just wanted a visual to illustrate his blog post.
  • Nature of Work. “A portrait photograph that is the clear product of the photographer’s artistic choices, like the Xena Photograph, falls close to the core of copyright protection.”
  • Amount Taken. Golden took the entire photo, unaltered.
  • Market Effect. The fact that Grecco earned $3.94 in licensing fees seems to suggest there isn’t much of a market. However, Grecco did have a secondary market for licensing the photo, and that market would be meaningless if Golden’s use is fair.

With respect to damages, “Golden is not an innocent infringer because it was not objectively reasonable under the circumstances to believe that the Xena Photograph was free for any person on the internet to copy and repurpose.” Nevertheless, the court sets the statutory damages at the $750 minimum. The court does not award attorneys’ fees. “Golden has acted in good faith, immediately removed the offending post upon notice, and likely caused little or no actual damages, a statutory damages award in Grecco’s favor is more than sufficient to advance the purposes of the Copyright Act.”

Despite winning the key doctrinal issues, Grecco will get only $750 in total to compensate him for litigating the case to summary judgment. This is a bad economic outcome for Grecco. It makes me wonder if Grecco’s $25,000 demand was too much. What if he had demanded a more reasonable number–say, $1,000? Maybe Golden would have taken that deal on the spot, and Grecco would have pocketed more money without any of the litigation costs. Or perhaps enough frightened defendants accept the $25k deal (or some inflated fraction), and a lawsuit like this becomes a loss leader to produce those more profitable settlements…?

A lawsuit like this is exactly what motivated the CASE Act’s new Copyright Claims Board (CCB). Grecco had a meritorious case, but the costs of litigating in federal court made it uneconomic. As the court acknowledged, “if every ‘troll’ lawsuit were litigated through summary judgment to recover $750, there would be little incentive to continue to bring those actions.” (It’s unclear if the court sees that as a good or a bad thing). I expect we’ll see hundreds of CCB cases a year just like this–photographers suing uneducated bloggers for small amounts. (Any sophisticated defendant will opt-out of the CCB). But if the CCB awards only $750 of damages to plaintiffs like Grecco, the CCB enforcement costs will make it unprofitable, so I don’t know that the CCB solves the enforcement cost problem underlying this case. (I expect the CCB adjudicators will be rightsowner-skewed and thus may award damages awards higher than courts would issue). So this case previews the cases we can expect to see, hundreds of times over, at the CCB. Yay…?

Case citation: Golden v. Michael Grecco Productions, Inc., 19-CV-3156 (NGG) (RER) (E.D.N.Y. March 9, 2021). Note: although this looks a lot like a Liebowitz case, Liebowitz wasn’t involved (as the plaintiff’s success suggests).