A new ruling from the U.S. District Court for the Southern District of New York addresses a hot topic of copyright infringement surrounding the posting of copyrighted material on social media. U.S. District Judge Mary Kay Vyskocil ruled in favor of plaintiff photographer Mark Iantosca on his motion for summary judgment against Elie Tahari, Ltd. even though the defendant included affirmative defenses of fair use and de minimis use.
As is true for most copyright cases involving the publishing of content on social media, there was no dispute that the photographer took the photograph and that the defendant committed the act of publishing the content on a social media platform (in this instance, Facebook and Twitter). In fact, in this case, the defendant even credited the photographer with capturing the content.
The judge found in favor of the plaintiff photographer on each of the four elements that make up the fair use analysis.
- First, the defendant could not prove that use was anything other than a commercial use intended to advertise and sell clothing. Furthermore, the use was not deemed transformative, because it did not add any new insights or understandings for the enrichment of society.
- Second, the copyrighted photo of a model was deemed to be a creative work, which goes to the nature of the work at issue. A citation to another case acknowledged that photographic images of actual people may be as creative and deserving of protection as purely fanciful creations.
- Third, there was no modification to the photograph prior to the defendant posting it to his Facebook and Twitter accounts. This goes to the amount and substantiality of the use.
- Last, it was determined that the unauthorized posting invades the photographer’s statutory right to license the copyrighted work to others for reproduction and thus had the potential to cause economic harm to the plaintiff.
De Minimis Use
A fair use affirmative defense is much more commonly plead than a de minimis use defense, and the court did not spend much time analyzing the claim of the defendant in rejecting it within its order granting summary judgment for the plaintiff.
The defendant basically argued that the use of the photograph was de minimis because reposting others’ pictures has become so commonplace on social media.
“Defendant offers no support for this contention, which, if credited, would represent a seismic shift in copyright protection,” stated the judge. “There is nothing ‘trivial’ about a business utilizing a professional photographer’s work to promote its products.”
This court’s ruling, on a motion for summary judgment no less, is important as there continue to be more copyright infringement cases filed by copyright holders against individuals who use copyrighted content, without permission, on social media networks. Take for instance the recently filed Complaint against Houston Texans quarterback Deshaun Watson for publishing three copyrighted photographs on his Instagram page without permission from the photographer.
This case that granted summary judgment could be distinguished because the defendant was apparently so clearly utilizing the copyrighted photo for commercial purposes. However, even setting that aside, the ruling includes strong language that plaintiffs may look to reference in future filings against possible infringers. Be careful with what you publish on social media!