Raanan KATZ, an individual, Plaintiff-Appellant, v. GOOGLE INC., a Delaware corporation, Defendant, Irina Chevaldina, an individual, Defendant-Appellee.
No. 14-14525
United States Court of Appeals, Eleventh Circuit
Sept. 17, 2015.
802 F.3d 1178
Sevier cannot support Tenorio‘s facts. Tenorio had frightened his family by his active resistance to putting the knife down and by his waving it around and holding it to his throat. Unlike the disputed lunging in Sevier, Tenorio‘s case involves a district court‘s finding that he entered the living room and walked directly toward the officers. While the police in Sevier had the luxury of time in which to involve others adept in dealing with similar situations, the officers called to Tenorio‘s house faced a more immediate challenge. As mentioned, they knew that Tenorio had scared Ms. Valdez to a degree that she called 911 and then frantically waved them over when they arrived. They also knew that the dispatcher had told them that Tenorio was drunk; that he had held a knife to his throat that evening; that he had vandalized house windows that evening; that he had a violent history; that Tenorio‘s wife and brother-in-law were with him in the house; and that Tenorio was in the kitchen waving the knife around. These circumstances presented much more of an emergency than did those in Sevier. I cannot see how the officers acted recklessly here in trying to get the two family members away from the knife-wielding Tenorio. Once that was accomplished, had he let that happen, the officers might well then have been able to take the approach with Tenorio that the district court would mandate upon their arrival.11
D. Conclusion
For these reasons, I would reverse the district court‘s denial of summary judgment for Officer Pitzer and remand with instructions to grant Officer Pitzer qualified immunity.
Alan J. Kluger, Michael B. Chesal, Jorge Delgado, Todd Alan Levine, Kluger Kaplan Silverman Katzen & Levine, PL, Joshua Evan Saltz, Peretz Chesal & Herrmann, PL, Miami, FL, for Plaintiff-Appellant.
Robert John Borrello, Herman Joseph Russomanno, III, Russomanno & Borrello, PA, Michael Terrell Davis, Benedict P. Kuehne, Law Office Of Benedict P. Kuehne, PA, Miami, FL, Marc A. Burton, Richard J. Burton, The Burton Law Firm, Peter Jay Solnick, Solnick Law Firm, PA, Aventura, FL, for Defendant-Appellee.
PER CURIAM:
Raanan Katz holds the copyright to a candid photograph (the Photo) of himself in which his tongue protrudes askew from his mouth. Katz considers the Photo unflattering and embarrassing.1 Irina Chevaldina copied the Photo into several scathing blog posts she wrote about Katz and his business practices. Katz appeals the district court‘s grant of summary judgment to Chevaldina on his copyright infringement claims, brought pursuant to
I. BACKGROUND
Katz is a minority investor in the Miami Heat basketball team and a commercial real estate tycoon who owns and operates shopping centers through corporate entities collectively known as RK Centers. In February 2011, Seffi Magriso, a professional photographer, took a photograph of Katz while Katz was standing courtside at a basketball practice in Jerusalem. The Photo is a candid headshot of Katz in which his eyebrows are arched sharply upwards and his tongue is sticking out of his mouth. In Katz‘s opinion, the Photo is “ugly,” “embarrassing,” and “compromis-
Chevaldina is a disgruntled former tenant in one of Katz‘s shopping centers. She found the Photo through a Google image search. Chevaldina created a blog devoted to sharply criticizing Katz and the business practices of RK Centers. From May 3, 2011, to September 24, 2012, Chevaldina published 25 blog posts that reproduced the Photo and criticized Katz. Chevaldina reproduced the Photo in her blog posts in three ways: (1) copied in its unaltered, original state; (2) accompanied by sharply worded captions; or (3) cropped and pasted into mocking cartoons. For example, in a September 18, 2011 blog post where the Photo was copied in its unaltered, original state, Chevaldina lambasted Katz for allegedly ripping off a “young American Jewish single mother of [a] special needs child,” calling him “the most immoral human-being in the world.” In a September 12, 2012, blog post, Chevaldina criticized Katz‘s litigation strategies as frivolous and copied the Photo with a caption across Katz‘s chest that says, “HE RIPPED-OFF SPECIAL NEEDS LITTLE JEWISH GIRL.” In a February 19, 2012, post about Katz‘s preparation for a deposition, Chevaldina cropped Katz‘s face and superimposed it against a cartoon dunce hat.
On June 3, 2012, Magriso assigned all of his rights in the Photo to Katz. Katz then filed a complaint against Chevaldina alleging direct copyright infringement.2 The parties filed cross-motions for summary judgment. The magistrate judge entered a Report and Recommendation (R & R) that recommended granting summary judgment to Chevaldina because her use of the Photo constituted fair use. Katz time-
II. STANDARD OF REVIEW
We review de novo a district court‘s grant of summary judgment, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Beal v. Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir.1994). “Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see
III. DISCUSSION
The only issue in this appeal is whether Chevaldina‘s use of the Photo in her blog posts constitutes fair use, as a matter of law, under
In deciding whether a defendant‘s use of a work constitutes fair use, courts must weigh the following four factors: (1) the purpose and character of the allegedly infringing use; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; (4) and the effect of the use on the potential market or value of the copyrighted work. Id. These four statutory factors are not to be treated in isolation from one another. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164, 1170-71, 127 L.Ed.2d 500 (1994). Rather, they are “[a]ll are to be explored, and the results weighed together, in light of the purposes of copyright.” Id., 510 U.S. at 578, 114 S.Ct. at 1171. Based on our weighing of the factors discussed below, the district court did not err in granting summary judgment to Chevaldina because her use of the Photo in each blog post constituted fair use.3 We discuss each factor in turn.
A. Purpose and Character of the Work
The first factor—the purpose and character of the allegedly infringing work—requires consideration of “(1) whether the use serves a nonprofit educational purpose, as opposed to a commercial purpose; and (2) the degree to which the work is a transformative use, as opposed to a merely superseding use, of the copyrighted work.” Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1309 (11th Cir. 2008) (quotation omitted). The district court did not err in concluding Chevaldina‘s use of the work was both noncommercial and transformative.
Every use of the Photo on the blog was of a primarily educational, rather than commercial, character. Chevaldina unabashedly criticized and commented on the dealings of Katz, his businesses, and his lawyers. Chevaldina‘s blog posts sought to warn and educate others about the alleged nefariousness of Katz, and she made no money from her use of the photo. See
Katz argues the Photo served a primarily commercial purpose because, in a March 4, 2012, blog post, Chevaldina said she was “in the process of writing a book ‘Why RK Centers Was The Wrong Choice.‘” Thus, Katz argues, Chevaldina used the Photo to advertise for commercial book sales. Chevaldina‘s reference to her intention to write a book about her experiences with Katz does not alone, however, transform the blog post into a commercial venture. Overall, the blog post retains her educational purpose of lambasting Katz and deterring others from conducting business with him. See March 4, 2012 Blog Post (“I hope my book will help ambitious people in their dream to be successful without selling the[ir] soul to the [d]evil.“). Moreover, the link between Chevaldina‘s commercial gain and her copying of the Photo was attenuated given that Chevaldina never wrote a book nor made any profits whatsoever. See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 83 (2d Cir.2014) (discounting commercial nature of use where “the link between the defendant‘s commercial gain and its copying is attenuated such that it would be misleading to characterize the use as commercial exploitation” (quotations and alterations omitted)).
Chevaldina‘s use of the Photo was also transformative. A use is transformative when it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” See Campbell, 510 U.S. at 579, 114 S.Ct. at 1171. Chevaldina‘s use of the Photo was transformative because, in
Chevaldina‘s use of the Photo was noncommercial and transformative. Accordingly, the first factor weighs in favor of fair use.
B. Nature of the Copyrighted Work
The second fair use factor—the nature of the copyrighted work—“recognizes that there is a hierarchy of copyright protection in which original, creative works are afforded greater protections than derivative works or factual compilations.” Suntrust, 268 F.3d at 1271. In evaluating this factor, courts consider (1) whether the work was previously published and (2) whether the work is primarily creative or factual. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563-64, 105 S.Ct. 2218, 2232, 85 L.Ed.2d 588 (1985).
There is no dispute that the Photo was published prior to Chevaldina‘s use. As such, the time of publication weighs in favor of fair use. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (9th Cir.2003) (holding publication of images on internet before defendant‘s copying favored fair use).
The district court did not err in finding the Photo was primarily a factual work. “The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.” Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232. Photography is an art form that may require the photographer to make many important creative decisions. See Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir.1998) (stating a photographer “is entitled to protection for such artistic elements as the particular lighting, the resulting skin tone on the subject, and the camera angle that she selected“). The Photo, however, is merely a candid shot in a public setting, and there is no evidence in the record that Magriso, the photographer, attempted to convey ideas, emotions, or in any way influence Katz‘s pose, expression, or clothing. See Fitzgerald v. CBS Broad., Inc., 491 F.Supp.2d 177, 188 (D.Mass.2007) (concluding candid photograph of mobster leaving police station was a primarily factual work). While Magriso‘s photojournalistic timing was fortuitous (at least from Chevaldina‘s perspective), this alone was not enough to make the creative gilt of the Photo predominate over its plainly factual elements.
The Photo was previously published and primarily factual. The second factor therefore weighs in favor of fair use.
C. Amount of the Work Used
The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
The district court did not err in finding the third factor was neutral as applied to the blog posts incorporating the Photo. Though ten blog posts reproduced the Photo in its entirety and without alteration, to copy any less of the image “would have made the picture useless to [Chevaldina‘s] story” that Katz is a predatory commercial landlord. See Núñez v. Caribbean Int‘l News Corp., 235 F.3d 18, 24 (1st Cir.2000). As such, the third factor neither weighs for nor against a finding of fair use.
D. Effect of the Use on the Potential Market for the Work
The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.”
The district court did not err in finding Chevaldina‘s use of the Photo would not materially impair Katz‘s incentive to publish the work. Katz took the highly unusual step of obtaining the copyright to the Photo and initiating this law-
IV. CONCLUSION
Three factors in our fair use inquiry—the purpose and character of the work, the nature of the work, and the effect of the use on the potential market—weigh in favor of Chevaldina. The amount and substantiality of the work is neutral. After weighing all four factors, our analysis tilts strongly in favor of fair use. The district court did not err in granting summary judgment to Chevaldina because every reasonable factfinder would conclude the inclusion of the Photo in her blog posts constituted fair use.
For the foregoing reasons, we affirm the district court‘s grant of summary judgment to Chevaldina.4
AFFIRMED.
PER CURIAM