BWP Media USA, Inc. v. Gossip Cop Media, Inc.
196 F. Supp. 3d 395
S.D.N.Y.2016Background
- BWP Media (doing business as PCN/NPG) owns copyrights to three celebrity photographs at issue (Kunis/Kutcher; Pattinson; Liberty Ross) and holds registration certificates for each.
- Gossip Cop (for‑profit celebrity news site) copied full “screen grabs” of those images from third‑party gossip sites (The Sun, Hollywood Life, TMZ) and posted them with short articles and a “real‑to‑rumor” rating.
- Gossip Cop did not obtain licenses or permission from BWP Media before posting the images; it contends its use was fair use because the site critiques or evaluates third‑party stories.
- BWP submitted registration certificates and testimony about its routine copyright registration practices; defendant alleged fraud on the Copyright Office for two registrations but failed to prove willfulness.
- The court found the images were identical to those registered, that Gossip Cop copied them without authorization, and that Gossip Cop’s use was not transformative or otherwise fair.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ownership of copyrights | BWP’s registration certificates create prima facie ownership; assignment disputes not raised by photographers | Registrations for two images unreliable because certifier (Evenstad) did not personally prepare/review applications (fraud) | Registrations stand; defendant failed to prove willful misrepresentation; routine practices and lack of dispute by creators support ownership presumption |
| Whether defendant copied registered works | BWP: images copied wholesale from third‑party licensees identical to registered works | Gossip Cop: challenges identification of deposited images; claims uses were contextual | BWP proved copying; testimony of routine practice sufficed to link the copied images to registrations |
| Fair use (transformative purpose) | BWP: Gossip Cop’s use was non‑transformative — images used for same purpose as licensed (illustration/attraction) and commercial | Gossip Cop: use was commentary/critique of third‑party stories and thus transformative/news reporting | Use not transformative for any of the three images; articles did not recontextualize images or comment on images themselves; fair use defense fails |
| Statutory damages & willfulness | BWP: seeks statutory damages (multiples of licensing fees) and deterrence; Ross should be five times, others multiples too | Gossip Cop: believed its uses were fair; offered site traffic data but not profits tied to specific uses | Court awarded statutory damages: Kunis/Kutcher $3,000 (3x $1,000), Pattinson $12,000 (3x $4,000), Ross $2,945 (5x $589); found Ross infringement willful, others not innocent; injunction entered |
Key Cases Cited
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir.) (elements of copyright infringement: copying and substantial similarity)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (U.S.) (transformative use standard and purpose/character analysis)
- Cariou v. Prince, 714 F.3d 694 (2d Cir.) (fair use is context‑sensitive; transformation does not require comment on original)
- Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir.) (news reporting context can support transformative use where work is recontextualized)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (U.S.) (commerciality and profit/nonprofit considerations in fair use)
- Rogers v. Koons, 960 F.2d 301 (2d Cir.) (registration certificate as prima facie evidence of ownership)
- Bill Graham Archives, LLC v. Dorling Kindersley Ltd., 386 F.Supp.2d 824 (S.D.N.Y.) (market substitution and harm to licensing markets relevant to fourth fair use factor)
- Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110 (2d Cir.) (willfulness defined as knowledge or reckless disregard for infringement)