138 F.4th 104
2d Cir.2025Background
- Plaintiff Jana Romanova, a professional photographer, took a photo later licensed for a single use by National Geographic and registered it with the U.S. Copyright Office.
- Defendant Amilus Inc. copied Romanova’s photo from National Geographic and published it on a paywalled website without authorization, alongside other images.
- Amilus did not respond to Romanova’s lawsuit or appear in the district court after being served.
- Romanova moved for default judgment; the court required Amilus to show cause, but after no response, required Romanova to show why Amilus's use was not fair use.
- The district court dismissed the complaint with prejudice, finding fair use "clearly established" from the complaint, despite defendant’s default and non-appearance.
- Romanova appealed; the Second Circuit reversed and remanded, instructing the district court to enter default judgment for Romanova.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Amilus’s use constitute fair use on the face of the complaint? | No fair use is evident; the use was commercial and not transformative or justified. | (No response; did not appear) Court below found defendant used the image with a new message about pet photography trends. | No fair use; district court misapplied the fair use doctrine—no transformative purpose or justification was present. |
| Can/should a district court sua sponte raise an affirmative defense (fair use) for a defaulting defendant? | No, it was improper to raise and rely on a defense never asserted. | (No response; did not appear) | While courts may consider such defenses where justified, here the fair use defense was erroneously applied; default judgment is appropriate. |
| Did Romanova state a valid claim for copyright infringement? | Yes, she held the copyright and alleged unauthorized copying by Amilus. | (No response; did not appear) | Yes; complaint stated a prima facie claim, and default judgment should be entered in her favor. |
| Was the dismissal with prejudice proper under Rule 12(b)(6)? | No, factual allegations should be accepted as true, and no fair use is apparent from the complaint. | (No response; did not appear) | No; the complaint should not have been dismissed under Rule 12(b)(6) based on an unaired affirmative defense. |
Key Cases Cited
- Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) (clarifies that fair use requires a justified transformative purpose, not simply a new message)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (identifies fair use as an affirmative defense with burden of proof on defendant and emphasizes need for justification and transformative use)
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (explains justifications for fair use and relationship to public benefit)
- City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011) (court need not accept legal conclusions or invalid claims even on default, but must accept factual allegations)
- Finkel v. Romanowicz, 577 F.3d 79 (2d Cir. 2009) (error for court to sua sponte raise and rely on forfeited affirmative defenses in default settings)