JULIE DERMANSKY v. HAYRIDE MEDIA, LLC
CIVIL ACTION NO. 22-3491
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
September 21, 2023
SECTION: D (4)
Before the Court is a Motion for Summary Judgment filed by the Defendant, Hayride Media, LLC,1 and a Cross-Motion for Partial Summary Judgment and Other Relief Under Rule 56 filed by the Plaintiff, Julie Dermansky.2 Both Motions are opposed.3 The parties have also filed replies in support of their respective Motions.4 Defendant, with leave of Court, also filed a brief supplemental memorandum.5 The Cross-Motions for Summary Judgment are fully briefed. After careful review of the parties’ memoranda, the record, and the applicable law, the Court DENIES the Defendant‘s Motion for Summary Judgment and GRANTS the Plaintiff‘s Cross-Motion for Partial Summary Judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
This copyright infringement case concerns the unauthorized use of two photographs by a news and politics blog to accompany several articles. Plaintiff Julie Dermansky (“Dermansky“) is a professional photographer whose work mostly covers
Dermansky alleges that Hayride used her May 1, 2014 photograph of former St. Tammany Councilman Jake Groby (the “Groby Photograph“) and her August 18, 2016 photograph of Baton Rouge community activist and political candidate Gary Chambers (the “Chambers Photograph“) on multiple occasions without her approval and without paying a licensing fee.11 Specifically, Dermansky alleges that Hayride used the Groby Photograph without authorization on at least two occasions and used the Chambers Photograph without authorization at least six times to accompany articles on Hayride‘s website.12 In no instance did Hayride give Dermansky credit for the photographs.13
Plaintiff alleges, and Defendant does not dispute, that Hayride first used the Groby Photograph on July 23, 2015 to illustrate an article entitled “Anti-Fracking St. Tammany Councilman‘s Water Plant Has Tested Positive For Brain-Eating Ameba [sic]”18 and again used the image in a July 27, 2015 follow-up article entitled “Your Water System Has Brain-Eating Amoeba, What Do You Do? Share Anti-Fracking Propaganda On Facebook!”19 Both uses by Hayride feature a slightly cropped version of the Groby Photograph appearing at the top of the article.20 Although both articles
The Chambers Photograph depicts Baton Rouge resident and community organizer Gary Chambers standing in front of stacked piles of water-logged furniture and belongings damaged during the historic August 2016 flooding in Louisiana.22 Dermansky alleges that she took the Chambers Photograph as part of an effort to “document the aftermath of the flood, particularly its effect on the greater Louisiana community.”23 Chambers agreed to pose for Dermansky‘s photo shoot; Dermansky selected the location for the photo and directed Chambers on where to stand, how to position himself, and where to direct his gaze for the portrait.24 Dermansky took several photos of Chambers but ultimately chose only one—the Chambers Photograph—for publication.25 The Chambers Photograph was first published in a September 26, 2016 article written by Dermansky for RevealNews.org entitled “Wading through the aftermath of Louisiana‘s 1,000-year flood,” in which the photo appeared alongside a credit to Dermansky.26 The Chambers Photograph also appears on Dermansky‘s personal website, jsdart.com, which includes copyright notices and watermarked versions of the photo.27
Dermansky filed suit against Hayride on September 27, 2022, bringing claims for Direct Copyright Infringement under
In its instant Motion for Summary Judgment, Hayride seeks the dismissal of Dermansky‘s copyright infringement claims on the grounds that Hayride‘s admitted uses of the Groby and Chambers Photographs constitute “fair use” within the meaning of
In response, Dermansky filed a Cross-Motion for Partial Summary Judgment and Other Relief Under
Conversely, Dermansky‘s reply focuses on Hayride‘s alleged failure to properly address the second, third, and fourth factors of the fair use defense in its response in opposition to Dermansky‘s Motion.43 Dermansky contends that Hayride has failed to prove lack of market harm for her Photographs and that Hayride inappropriately shifted the burden to Dermansky to demonstrate market harm.44 Dermansky also argues that Hayride‘s use of the Groby and Chambers Photographs was not “transformative” because Hayride did not include any criticism or commentary on the works themselves, but only on the subjects of the Photographs.45
The Court granted Hayride leave to file a brief supplemental memorandum in which Hayride argues that email exchanges between Dermansky and an online publisher demonstrate that Dermansky was aware that her publisher‘s posting of her images online removed her CMI data from the photographs.46 Hayride maintains
II. LEGAL STANDARD
Summary judgment is appropriate under
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.”55 The non-moving party can then defeat summary judgment by either submitting evidence sufficient to demonstrate the existence of a genuine dispute of material fact or by “showing that the moving party‘s evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.”56 If, however, the nonmoving party will bear the burden of proof at trial on the dispositive issue, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party‘s claim.57 The burden then shifts to the nonmoving party who must go beyond the pleadings and, “by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.‘”58
III. ANALYSIS
The parties dispute whether Hayride has met its burden in proving its fair use affirmative defense of its use of the Groby and Chambers Photographs and whether
A. Fair Use Defense59
“To promote the Progress of Science and useful Arts,” the Constitution grants Congress the power to make laws which “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”60 One such law, the Copyright Act of 1976, “encourages creativity by granting to the author of an original work ‘a bundle of exclusive rights’ . . . includ[ing] the rights to reproduce the copyrighted work, to prepare derivative works, and, in the case of pictorial or graphic works, to display the copyrighted work publicly.”61
On occasion, however, “rigid application of the copyright statute . . . stifle[s] the very creativity which that law is designed to foster.”62 Indeed, the exclusive rights that copyright law awards an artist “can sometimes stand in the way of others
Cognizant of this reality, American and English courts have recognized for centuries a need to strike a balance between protecting an artist‘s property rights in their own works and allowing others to build upon or reference those protected works.65 Enter the fair use doctrine. The fair use doctrine evolved to address the “inherent tension” between the rights of an artist and the public‘s need to use copyrighted material in a reasonable manner.66 Fair use is an “equitable rule of reason”67 and context-sensitive inquiry that rejects the use of “bright-line rules.”68 As summarized by Justice Story in Folsom v. Marsh, fair use “look[s] to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.70
These four statutory fair use factors are not exclusive nor is any single factor dispositive; the doctrine “calls for case-by-case analysis.”71 For instance, where copyrighted material “serves an artistic rather than a utilitarian function” a fair use defense is less likely to succeed.72 Moreover, because fair use is a “‘flexible’ concept,”73 “[a]ll [factors] are to be explored, and the results weighed together, in light of the purposes of copyright.”74 That being said, courts routinely give greater weight to the
1. The Purpose and Character of the Use
The first factor—“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”77—requires a court to consider whether a particular use is “commercial” in nature, the extent to which the use is “transformative,” and whether the user acted in good faith.78 “The ‘central’ question it asks is ‘whether the new work merely “supersede[s] the objects” of the original creation . . . (“supplanting” the original), or instead adds something new, with a further purpose or different character.‘”79 That a secondary use adds something new to a copyrighted material does not alone render such use fair; “[r]ather, the first factor . . . asks ‘whether and to what extent‘” a use differs in character and purpose than the original, with a larger difference more likely to weigh in favor of fair use.80 The Court addresses each consideration separately.
i. Commercial Use
The first statutory factor directs the Court to consider whether Hayride‘s use of the Groby and Chambers Photographs was commercial in nature. Commerciality
There is no dispute that Hayride received money from its use of the Chambers and Groby Photographs by way of advertising revenue generated by the number of views garnered by each article.84 Hayride contends, however, that the Court should consider the relatively meager sums involved—several hundred dollars in revenue—and that Hayride‘s “website is more of an avocation done out of McKay‘s passion for politics and social commentary than a means to raise money” in weighing this factor.85 The inquiry into commerciality does not turn on the size of the user‘s operation nor does it require a court to consider the relative importance to the alleged infringer of the commercial reasons for a use.86 After all, “the crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary
Hayride‘s non-commercial reasons for using the Chambers and Groby Photographs, which it describes as “negative commentary and criticism of the subjects of the photos,” do not cancel out the fact that Hayride made money off its use of those Photographs without having to pay any licensing fee. Hayride received a direct, albeit small, commercial benefit by using Dermansky‘s work. Simply because Hayride is a small one-man news shop does not give it any greater leeway to exploit copyrighted material than a sophisticated media outlet.
Moreover, because the commercial nature of the use “loom[s] larger” when a use is not “transformative,”89 the Court affords greater weight to the commercial nature of Hayride‘s uses given its conclusion, addressed below, that Hayride‘s uses of the Groby and Chambers Photographs were not “transformative.”
ii. Transformative
The main point of contention between the parties is the extent to which Hayride‘s uses of the Groby and Chambers Photographs are “transformative” in nature, particularly in light of the Supreme Court‘s recent pronouncement on the subject in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.90 A use is “transformative” when it “has a further purpose or different character” than that of
In Andy Warhol, the Supreme Court clarified that the “central question” of whether a use is “transformative” depends on “whether the new use served a purpose distinct from the original, or instead superseded its objects.”95 There, the Court confronted the extent to which Andy Warhol‘s colorful silkscreen portraits of musician Prince were “transformative” of photographer Lynn Goldsmith‘s original photograph upon which Warhol‘s creations were based.96 In finding Warhol‘s uses not “transformative,” the Court explained that simply because a secondary work “adds a new aesthetic or new expression to its source material,” such changes do not qualify as “transformative” in nature.97 “[O]therwise, the law may well ‘recogniz[e] any alteration as transformative.‘”98 That Warhol presented Prince in his own signature pop art style by changing the coloration and aesthetic of Goldsmith‘s
Andy Warhol directly controls the instant case and forecloses Hayride‘s argument that its use of the Groby and Chambers Photographs was “transformative.” Andy Warhol requires this Court to examine both Dermansky‘s original purpose and use of the Chambers and Groby Photographs and Hayride‘s use of those same images to determine whether Hayride‘s use was “transformative.”103 The facts in this case are not in dispute; both Dermansky and Hayride used the Groby and Chambers Photographs as illustrative aids for online news articles.104 Dermansky captured the
Hayride‘s attempt to escape this conclusion is unconvincing. Hayride does not contest that both it and Dermansky used the Groby and Chambers Photographs for the purpose of illustrating news articles; instead, Hayride focuses on the tone and point of view of the articles that follow the images. Hayride latches on to § 107‘s inclusion of “criticism” and “commentary” as examples of possible fair use to justify
Hayride‘s argument sweeps far too broadly. The statutory language of § 107 and binding Supreme Court precedent directly refute Hayride‘s argument. Hayride conflates use for the purpose of “criticism” of or “comment” on an original with use for the purpose of providing a visual accompaniment to textual “criticism” or “commentary” untethered to the original. Put differently, Hayride confuses its purpose in using the Groby and Chambers Photographs—illustration—with its
“Criticism,” as that term is used in
Here, none of Hayride‘s articles make any mention or criticism whatsoever of Dermansky‘s images. That an image accompanies a work of criticism does not mean that the purpose of the use of the image itself is for criticism. Hayride admits as much in its own memorandum in support of its Motion, stating that “Hayride used the photos for news reporting and criticism of Groby and Chambers . . . and to criticize the subjects of the photos.”118 While “commentary or criticism that targets an original work may have compelling reason to ‘conjure up’ the original by borrowing from it[,]”119 where, as here, Hayride‘s criticism does not “target” or comment on the Groby and Chambers Photographs, such use is not “transformative.” Hayride‘s articles “can stand on [their] own two feet”120 without the Groby and Chambers Photographs, demonstrating that whatever “criticism” or “commentary” contained in those articles
If . . . commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another‘s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.122
Moreover, the fact that Dermansky and Hayride have opposing opinions of Groby and Chambers as public figures has no bearing on the purpose of the use—to illustrate a news article. The Supreme Court rejected a similar argument in Warhol. It was irrelevant to whether Warhol‘s use was “transformative,” the Court stated, that Goldsmith‘s photographs of Prince showed that he “is ‘not a comfortable person’ and that he is ‘a vulnerable human being‘” while Warhol‘s Prince series depicted “‘Prince as a kind of icon or totem of something,’ a ‘mask-like simulacrum of his actual existence.‘”123 That Goldsmith and Warhol commented on Prince as a subject and portrayed Prince in different ways had no bearing as to what the purpose of their respective uses were.124
Likewise, that Dermansky‘s articles featured one perspective and Hayride‘s another does not change the underlying purpose of the respective uses. Again,
To hold otherwise would eviscerate copyright protection by granting legal privilege to infringers who could use copyrighted material without limit so long as they also included unrelated commentary or criticism. In the realm of photography, accepting Hayride‘s argument would allow news media to use a work without
Hayride‘s almost singular reliance on Dhillon v. Does 1–10131, an unpublished district court opinion from outside this Circuit, does not support its contention that its use of the Groby and Chambers Photographs was “transformative.” Dhillon involved an online blog‘s use of a professional headshot of a local attorney and political candidate to illustrate an article criticizing the candidate.132 That court determined that the defendant blog‘s use of the headshot was “transformative”
Here, there is no real distinction in the purpose of the uses between Dermansky and Hayride: to provide illustration for online articles. Although Hayride broadly reads Dhillon to support its argument that a use is “transformative” if the purpose of the original use is to positively portray the subject while the purpose of the challenged use is to criticize the subject, Hayride‘s argument oversimplifies the court‘s explanation in Dhillon and ignores the distinct purposes of the different uses in that case: the original as a political marketing tool and the other as an image to accompany a blog post. Again, Hayride confuses the purpose for a particular use with the purpose of materials accompanying the use. Moreover, to the extent that Hayride reads Dhillon to support its argument that a use of an image is “transformative” so long as it accompanies a work of criticism—but does not actually comment on or criticize an original work itself—such reading contradicts both the language of
Because Hayride used the Groby and Chamber‘s Photographs for the same purpose as Dermansky originally did, the Court finds that Hayride‘s uses of those Photographs were not “transformative.” And given that the commerciality of the use “loom[s] larger” where such use is not “transformative,” the first fair use factor tips strongly against a finding of fair use.
iii. Good Faith
The good faith of an alleged infringer does not excuse infringement.136 “Nevertheless,” the Fifth Circuit has explained, “because ‘fair use presupposes good faith and fair dealing,’ the propriety of the defendant‘s conduct does factor into ‘the equitable balance of a fair use determination.‘”137 Good faith alone, however, is insufficient to carry the burden of proof on the first factor by the party asserting the fair use defense.138 Dermansky contends that Hayride acted in bad faith because Hayride either knew or should have known that she was the author of the Groby and Chambers Photographs and failed to acknowledge to credit her.139 Hayride counters with a lengthy discussion of how it allegedly first found the Groby and Chambers
Despite the parties’ factual dispute, the Court does not find this dispute to preclude summary judgment because Hayride nevertheless fails to demonstrate that it satisfies the fair use defense, regardless of whether it acted in good or bad faith. Only material disputes of fact preclude a court from granting summary judgment. As the Court explains, the fair use factors weigh against a finding of fair use. Even if the Court were to find good faith on Hayride‘s part, Hayride has not demonstrated that it is entitled to a fair use defense. Good faith is at most a necessary but never sufficient condition to establish fair use. Because the Court has determined that Hayride‘s use of the Chambers and Groby Photographs was not “transformative” and was commercial in nature, the first factor weighs against Hayride.
2. The Nature of the Copyrighted Work
The second fair use factor examines “the nature of the copyrighted work” including the extent to which the work is expressive or creative rather than informational or factual and whether the work is published or unpublished.141 In general, fair use is more difficult to establish where a work is creative rather than informational.142 Additionally, the scope of fair use is “narrower with respect to
As a general rule, courts consider photographs to be creative, artistic expressions of their author deserving “thick copyright protection.”145 Indeed, “[a]lmost any photograph ‘may claim the necessary originality to support a copyright.‘”146 That being said, not every photograph is necessarily “expressive” in nature, particularly where a photograph documents a factual event, is “informative” in nature, and does not involve artistic consideration.147
The Court finds that the Groby and Chambers Photographs fall on the creative side of the line and, thus, that the second fair use factor tips toward Dermansky. As for the Groby Photograph, Dermansky explains that she “considered various visual elements including the natural lighting of the subjects, the depth of field of the image, the position of [her] camera, the angle of [her] shot, and the overall emotional impact of the composed image[,]” and specifically composed the image “using a large depth of field in order to capture Councilman Groby, an elected official advocating for environmental justice, juxtaposed with his constituents, so that both Groby and the protestor‘s signs would be in sharp focus.”148 Further, Dermansky claims that after
A similar creative process took place for the Chambers Photograph. Dermansky explains that she deliberately composed this image to “provide the viewer a sense of the severity of the storm‘s aftermath and the community‘s emotional response to it” and personally “selected the specific location for this Photograph, and directed Mr. Chambers where to stand, how to position himself, and where to direct his gaze in order to create this portrait.”150 She also “used a narrow depth of field to focus on Mr. Chambers as the photo subject, while blurring the background of the photograph to further enhance the focus on Mr. Chambers, while making sure to capture the piles of debris from the flooded homes in the background.”151 As with the Groby Photograph, Dermansky edited the Chambers Photograph with editing software.152
The uncontradicted record evidence demonstrates that both the Groby and Chambers Photographs involved deliberate and intentional creative choices by Dermansky to portray the subjects of her Photographs in particular ways. Hayride disputes this, contending that the Chambers and Groby Photographs are informative in nature, thus “mov[ing] the needle” towards fair use.153 Hayride argues that while
The Court rejects Hayride‘s invitation to consider the underlying merit or artistic quality of the photographs in considering whether or not they are creative in nature. Courts must refrain from attempting to judge the artistic significance of particular works.156 As Justice Holmes explained, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits.”157 Whether or not someone else could have also captured the Groby and Chambers Photographs is not a proper consideration for this Court to make and does not bear on whether the works are creative or not. The second fair use factor asks only whether a work is creative in nature, not whether it is the most creative. That other photographs at issue in other cases, such as in the case cited by Hayride, Murphy v. Millennium Radio Group, LLC, 650 F.3d 295 (3d Cir. 2011),158 are arguably more creative and more expressive than either the Chambers or Groby Photographs does not mean that any work falling
Moreover, the Groby and Chambers Photographs are not simply factual and informational in nature, as Hayride claims. Contrary to Hayride‘s argument, the Chambers Photograph, at the very least, did involve “staging or preparation by the photographer,” with Dermansky personally selecting the location for the pre-planned photoshoot with Chambers.159 And while the Groby Photograph is more candid in nature, that does not obviate the several artistic choices that Dermansky made in capturing that photo, as detailed above.
Hayride provides no explanation as to how the Groby and Chambers Photographs are factual in nature. That the Photographs “document events” does not mean that there is no creative element to them. There is no inherent tension between a creative, expressive work and one that captures and documents events. Indeed, courts routinely find photographs to be expressive works even where the photographs capture an event or happening.160 The distinction falls not on what a photograph‘s subject matter is but on how the photographer chooses to capture that image. And here, because Dermansky deliberately composed her images with consideration of, inter alia, backdrop and depth of field and later edited them with photo-editing software, the Court finds the second factor to weigh against fair use and in
3. The Amount and Substantiality of the Use
The third fair use factor—“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”161—requires the Court to “consider whether the amount copied is either a quantitatively or qualitatively significant part of the original.”162 In assessing this factor, the Court looks to whether “the quantity and value of the materials used are reasonable in relation to the purpose of the copying.”163 There is no bright line separating a permissible from an impermissible amount of copying; even a small amount of copying may weigh against fair use where the copying captures “the heart” of a work.164 This factor has less weight when considering photographs as compared to texts or musical compositions because “all or most of the work often must be used in order to preserve any meaning at all.”165
Here, Hayride does not dispute that it used a substantial portion of the “heart” of the Groby and Chambers Photographs. Instead, Hayride argues that this factor is neutral because, even though Hayride used substantially all of the Groby and Chambers Photographs, it would not have been feasible for Hayride to use any less than it did. That is, Hayride contends that it used as much of the Groby and
In the context of the specific photos at issue here, it is understandable that Hayride used a substantial portion of the images, cropping them slightly only around the margins; it would have made little sense for Hayride to have used the Groby and Chambers Photographs with both subjects removed. As discussed with the first factor, the purpose of both the original use and Hayride‘s use was to illustrate news articles with images of the subjects of the articles. Indeed, the very fact that Hayride copied a substantial portion of the original works “reveal[s] a dearth of transformative character or purpose under the first factor.”166 However understandable Hayride‘s choices may have been from the standpoint of providing visual accompaniment to a blog post, that does not change the fact that Hayride reproduced a very substantial portion of Dermansky‘s work.
Hayride again relies on Dhillon to support its argument that where it would not have been feasible for an alleged infringer to copy any less of a work, the third fair use factor is neutral. The Court disagrees. Hayride‘s argument goes to the respective weight assigned to the third factor, not to whom it favors.167 In the context of photography, it is likely that an infringer will use only a “feasible” amount of the original work and it may well be impossible to use any less. That reality requires courts to assign a different weight to this factor than if someone had copied the entirety of a novel, symphony, or comparable work. After all, copying the Groby
4. Effect of the Use on the Market for the Copyrighted Work
The fourth fair use factor looks to “the effect of the use” on the value of and market for the copyrighted work and is “undoubtedly the single most important element of fair use.”168 Courts consider both actual market harm and “whether widespread use of the work in the same infringing fashion ‘would result in a substantially adverse impact on the potential market’ for the original work and any derivatives.”169 In assessing market harm, courts look not to whether a work damages the market for the original, “but whether it usurps the market for the first by offering a competing substitute.”170 As the Supreme Court has explained, “when a commercial use amounts to mere duplication of the entirety of an original, it clearly ‘supersede[s] the objects,’ of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur.”171 As with every fair use factor, the party invoking the defense bears the burden of proof.172
Hayride conflates the market for its political writings with the market for the Groby and Chambers Photographs themselves. That Hayride and Dermansky have opposing political views has no relevancy as to the market for her images. While it may be true that only persons of a certain political stripe consume Hayride‘s content, it does not follow that none of those same individuals form the market for photographs of Groby and Chambers. Indeed, Hayride need only look to itself to see that the potential market for those works is not limited by particular social or political beliefs. Hayride and Dermansky may inhabit “different spheres,” but that has no
Consistent with the Court‘s finding that Hayride‘s uses of the Groby and Chambers Photographs were commercial in nature and not transformative, the Court finds that Hayride‘s uses are market substitutes for Dermansky‘s original works. Any person looking for a photograph of either Groby or Chambers can either pay Dermansky a licensing fee to use her works or they can copy the same work directly from Hayride‘s website. This is a clear-cut example of a market substitute, regardless of Hayride‘s intentions. Moreover, the fact that Hayride is unaware of anyone asking Hayride to license the Photographs or of anyone copying the Photographs from Hayride‘s website177 does not help Hayride‘s case because “widespread use” of the images “in the same infringing fashion ‘would result in a substantially adverse impact on the potential market’ for the original work.”178 If anyone “could use such images for free, there would be little or no reason to pay for [them].”179 Hayride has failed to meet its burden in proving a lack of potential market harm by its duplicative,
5. Weighing the Factors
All four statutory fair use factors weigh in favor of Dermansky and against a finding of fair use by Hayride. Although these factors are not exclusive, Hayride has not identified any other relevant consideration that the Court should take into account. Accordingly, the Court finds that Hayride‘s fair use defense fails as a matter of law and denies Hayride‘s Motion for Summary Judgment and grants Dermansky‘s Cross-Motion for Summary Judgment.
B. § 1202 CMI Stripping Claims
Hayrides moves for summary judgment on Dermansky‘s
The Court finds it inappropriate at this stage to enter summary judgment on Dermansky‘s
This dispute is both genuine and material because where Hayride found the Groby Photograph and in what condition, i.e., whether a copyright notice accompanied the Photograph, goes directly to the heart of the
C. Innocent Infringer Defense
Hayride moves the Court to declare Hayride an “innocent infringer” in the event that the Court denies summary judgment on Hayride‘s fair use defense.190 The “innocent infringer” defense gives a court discretion to reduce the minimum statutory damages from $750 to $200 per infringement if the court finds that the infringer “was
The Court finds it premature at this stage to declare Hayride to be an “innocent infringer.” Before the innocent infringer defense can be invoked, the plaintiff must first voluntarily elect to recover statutory damages in lieu of actual damages and profits.192 Only then can a defendant raise the “innocent infringer” defense. Because Dermansky has not yet elected to pursue statutory damages, the Court cannot yet rule on the merits of Hayride‘s “innocent infringer” defense.
IV. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Plaintiff‘s Motion for Summary Judgment193 is DENIED.
IT IS FURTHER ORDERED that Defendants’ Cross-Motion for Partial Summary Judgment and Other Relief Under Rule 56194 is GRANTED.
New Orleans, Louisiana, September 20, 2023.
WENDY B. VITTER
United States District Judge