Catherine Balsley v. LFP, Inc., 691 F.3d 747

LFP publishes Hustler with a recurring Hot News Babes contest to boost sales and reader engagement.
Bosley, a CBS Ohio news anchor, was photographed in 2003 by Durocher for lenshead.com; Plaintiffs acquired and registered the photos in 2004.
Hustler published the Bosley photograph in February 2006 without obtaining permission, including a description of Bosley and the contest rules.
The February 2006 issue generated over $1 million in gross sales; Plaintiffs discovered the publication in 2008 and sued for direct copyright infringement.
At trial, the jury found direct infringement but did not find willful conduct; Plaintiffs were awarded $135,000, and fair-use defense was rejected.
District court denied Rule 50(a) motions; defendants pursued Rule 50(b) and Rule 59 motions, which were denied; attorney’s fees were partially awarded to Plaintiffs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether fair use defeats infringement	Bosley argues Bosley photo usage was not transformative and harmed market.	LFP contends play is transformative and favored by counsel advice, constituting fair use.	Fair use not established; four factors weigh against Defendant.
Whether the verdict on profits under § 504(b) was proper	Plaintiffs must show gross revenue reasonably related to infringement; sale of the issue relates to the photo.	Defendant contends profits not attributable to the Bosley photograph and argues apportionment issues.	Plaintiffs demonstrated a reasonable relationship; $1,148,000 gross revenue related to the infringement; burden shift appropriately.
Whether the district court erred in denying a new trial on trial-counsel comments	Comments were within permissible scope to attack credibility and were not prejudicial.	Several statements were prejudicial and improper and entitled the defense to a new trial.	No abuse of discretion; overall comments did not prejudice the verdict.
Who is the prevailing party for attorney’s fees	Plaintiffs prevailed on the federal claim; fees were warranted under § 505.	Defendant prevailed on state-law claims and argues proportional fee shifting.	Plaintiffs awarded copyright fees; Defendant denied additional fees for state-law claims.

Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) (fair-use factors guide transformation inquiry)
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (U.S. 1994) (transformation as central to fair use)
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (U.S. 1985) (nature of the copyrighted work and first publication)
Nunez v. Caribbean Int'l News Corp., 235 F.3d 18 (1st Cir. 2000) (photographs may be creative; degree of creativity varies)
Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (photographs can be creative and factual in nature)
Brewer v. Hustler Magazine, Inc., 749 F.2d 527 (9th Cir. 1984) (context supports non-transformative use findings)
Bridgeport Music, Inc. v. WB Music Corp. (WB Music I), 508 F.3d 394 (6th Cir. 2007) (elements of copyright infringement; standard for infringement)
Thoroughbred Software Int’l, Inc. v. Dice Corp, 488 F.3d 352 (6th Cir. 2007) (four-factor test for attorney’s fees in copyright cases)
Peter Kiewit Sons’ Co., 624 F.2d 756 (6th Cir. 1980) (trial court discretion in evaluating prejudicial conduct)