2:22-cv-03491
E.D. La.Sep 21, 2023Background:
- Plaintiff Julie Dermansky is a professional photographer who registered two photos (the "Groby" and "Chambers" images) and licensed them for publication; defendant Hayride Media is an online political blog that used those photos multiple times without permission or credit.
- Hayride published the Groby photo twice (2015) and the Chambers photo six times (2017–2019), cropping and, for Chambers, adding the text "Everyday I’m Hustlin’." Hayride earned advertising revenue from the posts.
- Dermansky sued for direct copyright infringement (17 U.S.C. § 501 et seq.) and for removal/alteration of copyright management information (17 U.S.C. § 1202(b)); Hayride asserted fair use and pleaded innocent-infringer as an affirmative defense.
- On cross-motions for summary judgment, the court found the factual record undisputed as to how the images were used but disputed as to where Hayride obtained them and whether CMI was present when Hayride obtained the files.
- The court held as a matter of law that Hayride’s uses are not fair use and granted Dermansky’s cross-motion on fair use; the court denied summary judgment on the § 1202 CMI-stripping claims because material factual disputes remain; it declined to rule on the innocent-infringer reduction as premature.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hayride's uses of the Groby and Chambers photos constitute fair use | Dermansky: uses were non-transformative, commercial, copied the heart of creative works, and harmed licensing market | Hayride: use was transformative (different critical tone), minimal commercial gain, acted in good faith because images circulated online without CMI, and used only what was necessary | Court: Not fair use — uses served same purpose as originals (illustration for news), were commercial, copied substantial portions, and acted as market substitutes; first and fourth factors weigh strongly against Hayride |
| Whether Hayride violated 17 U.S.C. § 1202(b) by removing CMI | Dermansky: Hayride published images that originally carried her copyright info, so Hayride removed or failed to preserve CMI | Hayride: it obtained images from third-party online sources that lacked CMI, so it did not remove CMI or knowingly do so | Court: Denied summary judgment for Hayride — genuine, material factual disputes about where Hayride obtained the images and whether CMI was present preclude resolution now |
| Whether Hayride qualifies as an "innocent infringer" for reduced statutory damages | Dermansky: not directly addressed beyond damages procedure; plaintiff has not elected statutory damages yet | Hayride: lacked knowledge or reason to know images were copyrighted and thus seeks reduction under §504(c)(2) | Court: Premature to decide — plaintiff has not elected statutory damages, so court will not rule on innocent-infringer defense now |
Key Cases Cited
- Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258 (U.S. 2023) (clarified that transformativeness asks whether the secondary use serves a purpose distinct from the original)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (U.S. 1994) (sets out the four‑factor fair use framework and guidance on transformative use)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (U.S. 1985) (commercial exploitation and market harm are relevant to fair use analysis)
- Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (U.S. 2021) (discusses the balance copyright law strikes to promote creativity)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (examines market substitution and the fourth fair‑use factor)