87 F. Supp. 3d 499
S.D.N.Y.2015Background
- BWP Media (Plaintiff) owns copyrights to celebrity photos/videos and licenses them to media; it sued Gossip Cop Media (Defendant) for reproducing four works on its website without permission.
- Four works at issue: (1) photo of Mila Kunis & Ashton Kutcher (registered), (2) photo of Robert Pattinson (registered), (3) photo of Liberty Ross (registered), and (4) video of Gwyneth Paltrow (copyright application pending).
- Gossip Cop published the Kunis and Pattinson images alongside articles that quoted or copied original headlines and then criticized/contradicted those stories; it published the Ross image as a standalone gossip/photo item without attributing another publication.
- Plaintiff alleged commercial market harm and that Gossip Cop’s reproductions were not licensed; Defendant moved to dismiss, arguing (a) fair use for all four works and (b) lack of registration for the Paltrow video.
- Court treated allegations as true for 12(b)(6) review, incorporated the challenged webpages, and evaluated registration requirement and fair use factors at the pleadings stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pending copyright application satisfies 17 U.S.C. § 411(a) so suit may proceed for the Paltrow video | BWP contends ownership and filed application; argues suit can proceed (cites limited contrary authority) | Gossip Cop argues registration prerequisite not satisfied because application was still pending | Court: Pending application does not satisfy § 411(a); dismissal granted for Paltrow image |
| Whether Gossip Cop’s reproductions are fair use (transformative purpose) for Kunis/Kutcher image | Use was nontransformative news use and competed with Plaintiff’s market | Gossip Cop argues use was transformative commentary/critique of original outlets (copied headlines then criticized stories) | Court: Purpose factor favors Defendant for Kunis/Kutcher (transformative context alleged) |
| Whether Gossip Cop’s reproductions are fair use for Pattinson image | Use was nontransformative and commercially exploitative | Gossip Cop argues transformative criticism of original story and similar contextual use as Kunis image | Court: Purpose factor favors Defendant for Pattinson image (transformative context alleged) |
| Whether Gossip Cop’s reproductions are fair use for Ross image | Ross argues the Ross image was reproduced identically and not used in critical context, harming market | Gossip Cop contends its Rumor-to-Real framing is transformative | Court: Purpose factor favors Plaintiff for Ross image; overall fair-use analysis (amount/substantiality and market effect) favors Plaintiff, so dismissal denied as to Ross |
Key Cases Cited
- Iqbal v. Ashcroft, 556 U.S. 662 (pleading standard for plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (facts must nudge claim from conceivable to plausible)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (registration question discussed)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (transformative use and fair use factors)
- Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (publication, market effect, and fair use analysis)
- Cariou v. Prince, 714 F.3d 694 (2d Cir.) (transformative use and fair use inquiry)
- Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir.) (purpose/commerciality in fair use)
- Blanch v. Koons, 467 F.3d 244 (2d Cir.) (amount/substantiality and transformative inquiry)
- NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir.) (market-substitution inquiry under fourth fair use factor)
- Twin Peaks Prods., Inc. v. Publications Int’l, Ltd., 996 F.2d 1366 (2d Cir.) (secondary report can be a market substitute)
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir.) (pleadings-stage resolution of copyright issues)
- Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir.) (deciding fair use at motion-to-dismiss using original and alleged work)
- Kelly-Brown v. Winfrey, 717 F.3d 295 (2d Cir.) (affirmative defenses at pleadings stage)