Gossip Cop Can’t Bag An Easy Dismissal With Fair Use Claims

Gossip Cop makes it its business to provide celebrity gossip news.  BWP Media is an entertainment-related photojournalism company.  BWP owns numerous photographs and videos of celebrities, which it licenses to both online and print publications.  BWP sued Gossip Cop in the Southern District of New York for copyright infringement for posting three photos and one video on Gossip Cop’s website without BWP’s authorization.  Gossip Cop moved to dismiss BWP’s complaint for failure to state a claim upon which relief can be granted.  Gossip Cop claimed that its use of the four images is protected by the fair use doctrine.  In addition, Gossip Cop claimed that BWP failed to receive a copyright registration for one of the images, requiring dismissal of the complaint for that image.

The four images are a Mila Kunis/Ashton Kutcher image (Kunis/Kutcher image), a Robert Pattinson image (Pattinson image), a Liberty Ross image (Ross image) and a Gwyneth Paltrow image (Paltrow image).  The district court agreed with Gossip Cop that BWP did not possess a copyright registration of the Paltrow image, held that a pending copyright registration application was not good enough and granted Gossip Cop’s motion to dismiss regarding that image.  The district court denied Gossip Cop’s motion to dismiss for the other images.

Fair Use

The fair use doctrine limits the creators’ control over their own works in certain circumstances and allows the public to use copyrighted materials without the permission of the copyright holder.

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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


17 USC §107.

Although the determination of fair use is a mixed question of fact and law, the Second Circuit has endorsed the resolution of other copyright questions at the pleadings stage by analyzing the complaint and incorporating by reference the documents referred to therein.  And the Second Circuit has approvingly cited the Seventh Circuit’s discussion of the fair use inquiry at the motion to dismiss stage.  The Seventh Circuit determined that in certain circumstances, the only two pieces of evidence needed to decide the question of fair use are the original version and the allegedly infringing work, and found that this analysis could be conducted pursuant to a motion to dismiss under Rule 12(b)(6) or 12(c), without converting the motion into one for summary judgment pursuant to Rule 12(d).

(Opinion pdf pages 11 and 12).

The district court found that “it is possible to resolve the fair use inquiry on a motion to dismiss under certain circumstances, but observes that there is a dearth of cases granting such a motion.”  (Opinion pdf page 12).

The district court analyzed the Kunis/Kutcher, Pattinson and Ross images according to the fair use factors.

1. The purpose and character of the use

Does the new work merely supersede the objects of the original work or does it instead add something new, with a further purpose or different character, altering the original work with new expression, meaning or message?  Was the new work transformative?

The district court answered this question “yes” for Gossip Cop’s use of the Kunis/Kutcher and Pattinson images, but “no” for Gossip Cop’s use of the Ross image.

Although Gossip Cop is, broadly speaking, in the same celebrity journalism business as other outlets, the Kunis/Kutcher Image and the Pattinson Image are utilized in a different context on Gossip Cop’s website than in the publications from which the images are copied. Gossip Cop makes clear, including by copying the headlines that ran with the images, that the images were used to illustrate or bolster the stories run by The Sun and HollywoodLife, and proceeds to attack the factual bases of these stories. Such surrounding commentary or criticism clearly militates for a finding of transformative use. And while Gossip Cop may be a far cry from Woodward and Bernstein, the fact that the story is admittedly on the tawdry side of the news ledger does not make it any less of a fair use.

(Opinion pdf pages 15 – 16).

Gossip Cop’s use of the Ross image contained none of the transformative qualities of its use of the Kunis/Kutcher and Pattinson images. 

2. The nature of the copyrighted work

The Second Circuit’s analysis of this factor calls for

a consideration of (1) whether the work is expressive or creative, with a greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) whether the work is published or unpublished, with the scope for fair use involving unpublished works being considerably narrower.

(Opinion pdf page 17).

The district court noted that “many courts have expressed trepidation at characterizing photographs as either factual or creative.”  (Opinion pdf page 18).

The creativity of the images at issue is mixed; while a paparazzi photographer does not direct the subject or create the background for the images, he does have control over the exposure of the film (i.e., shutter speed and flash settings), use his artistic skill to edit the pictures for size, color, and clarity, and choose which images to publish based on the allurement of the subject. Though the Court suspects that the Pattinson and Ross Images are intended to inform the viewer by scandalous implication rather than cause aesthetic appreciation of the lighting choices, given the procedural posture of the case Plaintiff has at least plausibly suggested that the images at issue constitute creative works.

(Opinion pdf pages 18 – 19).

The previous publication of the images favored Gossip Cop.

The district court declined to award significant weight to the second factor in either party’s favor.

3. The amount and substantiality of the portion used

Were the quantity and value of the materials used reasonable in relation to the purpose of the copying?

The district court ruled that this factor favored BWP.  Gossip Cop reproduced the images in their entirety.  The district court declined to resolve the issue of whether it was necessary to reproduce the Kunis/Kutcher and Pattinson images for their respective articles.

4. The effect of the use upon the potential market for the copyrighted work

Are the defendants offering a market substitute for the original work?

The district court found that this factor weighs in BWP’s favor.

Plaintiff alleges that Gossip Cop operates in precisely the same market as the organizations to which Plaintiff licenses its images, and that Gossip Cop’s practices — if widespread — would destroy that market by reducing the value of a purportedly exclusive license. Defendant responds that it operates in a unique, transformative news reporting market. In effect, the Court is asked to decide whether there is a market for evaluation of celebrity journalism as distinct from the primary celebrity journalism market. Given the nature of this inquiry, the Court must credit Plaintiff’s allegations at this stage to the extent they are factual in nature.

Moreover, the Second Circuit has held that a report on and evaluation of a copyrighted work can, by reproducing the original with overzealous detail and completeness, stray beyond the bounds of fair use. It is possible that a person who had missed an episode of ‘Twin Peaks’ would find reading the Book an adequate substitute, and would not need to rent the videotape of that episode in order to enjoy the next one. Similarly, it is possible that a person who had missed TMZ’s initial report on Liberty Ross’s jewelry choices would find Gossip Cop’s Ross Article to be an adequate substitute, and would thus deprive TMZ (and by extension BWP Media) of a portion of its market. Accordingly, the Court finds that this factor weighs in Plaintiff’s favor.

(Opinion pdf page 21 – 22).

This case is BWP Media USA, Inc. v. Gossip Cop Media, LLC, No. 13 Civ. 7574 (KPF), U.S. District Court, Southern District of New York.

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