444 F.Supp.3d 457
E.D.N.Y.2020Background
- On October 31, 2017, Alex Cruz (an amateur photographer) took a photograph of the arrest of terror suspect Sayfullo Saipov and sent it to a friend who posted it on Instagram.
- Media outlets contacted Cruz about publishing the photograph; Cruz licensed it to CNN and NBC (disputed exact timing), and applied for copyright registration (certificate issued Nov. 7, 2017).
- Cox Media Group published the Photograph on its WSB‑TV website and social media the same day without crediting or licensing it from Cruz.
- Cruz sued for copyright infringement; parties filed cross‑motions for partial summary judgment on infringement and Cox's affirmative defenses (including fair use).
- The court found the Photograph sufficiently original, that Cox copied it, and granted Cruz summary judgment on infringement; Cox’s motion was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright infringement (ownership, originality, copying) | Cruz: holds valid copyright registration and Cox copied the Photo | Cox: Photograph lacks the minimal originality required for copyright | Court: Registration is prima facie evidence of ownership; Photo met originality (timing/selection); Cox copied it — infringement found (summary judgment for Cruz) |
| Fair use (4‑factor analysis) | Cruz: Cox’s use was non‑transformative, reproduced the entire photo, and usurped Cruz’s licensing market | Cox: Use was news reporting, added context and served public interest; editorial need justified full reproduction | Court: First, third, and fourth factors weigh against fair use (use was not transformative, copied entire work, harmed market); second factor favored Cox but is not dispositive; fair use defense rejected |
| Other defenses: failure to state a claim & First Amendment | Cruz: defenses lack merit; fair use subsumes First Amendment claim | Cox: asserted both defenses (and relied on First Amendment/fair use) | Court: Cox did not press responses; court held complaint plausible and First Amendment claims coextensive with fair use — defenses rejected |
Key Cases Cited
- Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (establishes originality standard for copyright)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (1994) (fair use test; transformative use concept)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (news reporting does not automatically justify taking copyrighted expression)
- Bill Graham Archives v. Darling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (copying entire work disfavors fair use)
- Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) (news/data dissemination can favor fair use in certain contexts)
- Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998) (market‑substitution inquiry under fourth fair use factor)
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (contextual weighing of fair use factors)
- Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005) (photographs typically meet low originality threshold)
- Otto v. Hearst Comms., Inc., 345 F. Supp. 3d 412 (S.D.N.Y. 2018) (similar holding on non‑transformative news use and market harm)