Disgruntled Former Tenant Wins Fair Use of Ugly Photo of Real Estate Tycoon

Irina Chevaldina is a disgruntled former tenant of a shopping center owned by Raanan Katz.  Katz also owns a minority interest in the Miami Heat basketball team.  Seffi Magriso is a professional photographer who took a photo of Katz while he stood courtside at a basketball practice in Jerusalem.  The photo shows Katz with his tongue sticking out of his mouth and his eyebrows arched sharply upwards.  Katz, who thinks the photo is ugly and embarrassing, acquired the copyright to the photo from Magriso.  Chevaldina found the photo through a Google image search and incorporated it into her scathing blog posts about Katz and his business practices.   

Katz sued Chevaldina for copyright infringement.  The district court granted summary judgment in favor of Chevaldina based on her fair use argument.  The Eleventh Circuit affirmed the district court’s ruling.

17 U.S.C. §107 codifies fair use.

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.  These four statutory factors are not to be treated in isolation from one another.  Rather, they are all are to be explored, and the results weighed together, in light of the purposes of copyright.  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. We discuss each factor in turn.

(Opinion pdf page 5).

Purpose and Character of the Work

The first factor examines the purpose and character of the allegedly infringing work.  Did the use serve a nonprofit educational purpose and was the use transformative?  The Eleventh Circuit determined that Chevaldina’s use of the photo 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.

(Opinion pdf page 6).

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. Chevaldina’s use of the Photo was transformative because, in the context of the blog post’s surrounding commentary, she used Katz’s purportedly ‘ugly’ and ‘compromising’ appearance to ridicule and satirize his character. 

(Opinion pdf page 7).

The first fair use factor weighed in Chevaldina’s favor.

Nature of the Copyrighted Work

This factor recognizes that original, creative works receive greater copyright protection than derivative works or factual compilations.  Was the original work previously published and is it primarily creative or factual?

It was undisputed that the photo of Katz was published before Chevaldina’s use.  The photo was also primarily a factual work, as it was a candid shot of Katz in a public setting. 

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.

(Opinion pdf page 9).

The second factor weighed in Chevaldina’s favor.

Amount of the Work Used

Did the alleged infringer use too much of the copyrighted work in light of the purpose and character of the use?

This factor weighs less when considering a photograph—where all or most of the work often must be used in order to preserve any meaning at all—than a work such as a text or musical composition, where bits and pieces can be excerpted without losing all value.

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.  As such, the third factor neither weighs for nor against a finding of fair use.

(Opinion pdf page 10).

Effect of the Use on the Potential Market for the Work

If everyone engaged in the defendant’s conduct, would the use cause substantial economic harm that would materially impair the copyright owner’s incentive to publish the 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 lawsuit specifically to prevent its publication. Katz profoundly distastes the Photo and seeks to extinguish, for all time, the dissemination of his ’embarrassing’ countenance. Due to Katz’s attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work. While we recognize that even an author who disavows any intention to publish his work has the right to change his mind, the likelihood of Katz changing his mind about the Photo is, based on the undisputed evidence in the record, incredibly remote. Since there is no evidence Chevaldina’s use of the Photo had or would have any impact upon any actual or potential market, the fourth factor weighs in favor of fair use.

(Opinion pdf pages 11 – 12).

The Eleventh Circuit ruled that three of the four fair use factors weighed in Chevaldina’s favor.  The four factor was neutral.  The Eleventh Circuit’s analysis tilted 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.

(Opinion pdf page 12).

This case is Katz v. Chevaldina, No. 14-14525, Eleventh Circuit Court of Appeals.

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