Second Circuit Confirms Fair Use on Motion to Dismiss–Yang v. Mic

This is a case initially filed by Richard Liebowitz that’s still clogging the courts, which explains why it is so transparently unmeritorious. I previously described the case:

The photo at issue depicted a man in a bar named Dan Rochkind. The NY Post licensed the photo for its story, “Why I won’t date hot women anymore.” As you can infer from the title, the vapid story bristled with sexism and possible misogyny. As a result, it sparked substantial criticism. Mic covered this criticism in a story, “Twitter is skewering the ‘New York Post’ for a piece on why a man ‘won’t date hot women.’” The Mic article included a screenshot of the NY Post article, including a portion of the licensed photo, at the top of its story

The district court granted Mic’s motion to dismiss on fair use grounds. In a memo opinion, the Second Circuit affirms the fair use motion to dismiss.

Nature of the Use. “the Mic article similarly uses an excerpt—in the form of a composite screenshot—to cover the public’s lampooning of the Post article and provide its own commentary. Accordingly, Mic’s banner image does not serve merely as an illustrative aid to describe Rochkind. Mic thus does not use Yang’s photograph “for precisely a central purpose for which it was created.””

Nature of the Work. Not relevant because of the transformative use.

Amount Taken. Mic took a reasonable amount to effectuate its satire.

Market Effect. “Because Yang has not, however, plausibly alleged that such a market exists for photographs that happen to be featured in news articles criticizing the original article in which the photograph appeared, Yang’s market was not plausibly harmed because Mic did not license his image.”

Mic’s Attorneys’ Fees. “the District Court reasonably found this case neither frivolous nor improperly motivated.” I strongly disagree. This case was frivolous on its face, and the fact the court found fair use on a motion to dismiss is prima facie evidence of its frivolousness (i.e., any copyright lawyer with any expertise should not file a case where the answer is so obvious).  Furthermore, it would be entirely appropriate to award attorneys’ fees as a deterrent to other copyright owners who might bring similar lawsuits for improper purposes.

Case Citation: Yang v. Mic Network Inc., 20-4097-cv(L) (2d Cir. March 29, 2022)