Walsh v. Townsquare Media, Inc., 464 F.Supp.3d 570

Background

Rebecca Fay Walsh, a professional photographer, took and registered a photograph of Cardi B at a Tom Ford fashion show and licensed images through Getty Images.
Cardi B posted a composite Instagram post that included Walsh’s Photograph alongside an image of a Tom Ford lipstick.
Townsquare Media’s website XXL Mag published an article about the Tom Ford/Cardi B lipstick and embedded Cardi B’s Instagram post (which incidentally contained Walsh’s Photograph).
Walsh sued Townsquare for copyright infringement for publishing the Photograph without a license; Townsquare removed the embedded Post after suit and moved for judgment on the pleadings asserting fair use.
The court evaluated fair use on the face of the pleadings and exhibits and concluded Townsquare’s embedding of the Instagram Post (which included the Photograph) was a transformative, fair use.
The court granted judgment on the pleadings for Townsquare and dismissed the action with prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Purpose & character: Was the use transformative or merely a replacement of the original?	Walsh: XXL used the Photograph to illustrate Cardi B and thus supplanted her market and purpose.	Townsquare: The Article reported on Cardi B’s Instagram activity; the Post (not the Photograph) was the story, so embedding was transformative.	Court: Factor strongly favors Townsquare — use was transformative because the Instagram Post (including the Photograph) was the subject of news reporting.
2) Nature of the work: Is the Photograph highly creative or closer to the core of copyright protection?	Walsh: Photograph is creative and entitled to strong protection.	Townsquare: Photograph is a published paparazzi-style image with both factual and creative elements.	Court: Factor slightly favors Townsquare (published and partly factual images) — neutral-to-favoring fair use.
3) Amount/substantiality: Was more of the Photograph used than necessary?	Walsh: XXL reproduced the uncropped Photograph and could have used a different/licensed image.	Townsquare: Used only the Photograph as it appeared in Cardi B’s Post; necessary to illustrate the Post.	Court: Factor favors Townsquare — no more was taken than necessary to report the Post.
4) Market effect: Did Townsquare’s use usurp the market for licensing the Photograph?	Walsh: Commercial republication harms licensing market and diverts revenue.	Townsquare: The Photograph appeared only as part of the Post; unlikely to serve as a market substitute for licensing the standalone image.	Court: Factor favors Townsquare — no plausible significant market harm or substitution.

Key Cases Cited

Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569 (1994) (defines transformative use and central fair-use framework)
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (discusses tension between exclusive rights and expressive reference; transformative inquiry)
Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) (outlines the four fair-use factors and context-sensitive analysis)
Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (burden of proof on defendant for fair use; market-harm standard)
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (commercial nature weighs against fair use; caution about labeling newsworthiness)
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (balancing of fair-use factors and ‘promoting progress’ goal)
Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000) (photographs as the story can support fair use in news reporting)
Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (transformativeness can favor fair use even without criticism)
Barcroft Media, Ltd. v. Coed Media Group, 297 F. Supp. 3d 339 (S.D.N.Y. 2017) (paparazzi/photo republication that merely presents original content is not transformative)
BWP Media USA, Inc. v. Gossip Cop Media, Inc., 196 F. Supp. 3d 395 (S.D.N.Y. 2016) (republication of celebrity photos to show what they depict is not transformative)
Ferdman v. CBS Interactive Inc., 342 F. Supp. 3d 515 (S.D.N.Y. 2018) (examined when an image is ‘the story’ and whether use is transformative)