By Pamela C. Maloney, J.D.
Use of tennis star’s Instagram retirement post, which included copyrighted photograph, in sports news publisher’s report of player’s retirement was fair use.
A sports news publisher successfully asserted the fair use defense in response to a photographer’s claim that the inclusion of his copyrighted photograph of professional tennis player in an article announcing the player’s retirement infringed the photographer’s rights in the work, the federal district court in Brooklyn ruled, dismissing the photographer’s copyright infringement action. Use of the photograph was transformative because the article’s purpose was to report on the tennis player’s retirement announcement and the fact that it took place on Instagram, not to describe her tennis playing (Boesen v. United Sports Publications, Ltd., November 2, 2020, Ross, A.).
When professional tennis player Carolyn Wozniacki announced her retirement from the sport on her Instagram page in December 2019, she included a cropped, low-resolution version of photograph of her that had been taken by a professional photographer who was based in Denmark. The picture, which was taken in 2002, showed a young Wozniacki preparing to serve. United Sports Publications, Ltd., a sports news publisher, ran an article covering Wozniacki’s retirement on the Long Island Tennis Magazine’s website. The article quoted the text of Wozniacki’s Instagram post and embedded Wozniacki’s original post, including the photograph. The photographer, who had registered a copyright in the photo that became effective several weeks after the article was posted, filed a copyright infringement claim against the sports news publisher, alleging that the publisher had neither licensed the photograph nor had permission to publish it on its website. The sports news publisher moved to dismiss on the grounds of the fair use defense.
Purpose and character. In comparing the contested news article to the original photograph, it was obvious to the district court that the article’s purpose was to report on Wozniacki’s retirement announcement and the fact that it took place on Instagram, not to describe her tennis playing. The article did not use the photograph that Wozniacki had included with her post as a generic image of the tennis player, nor to depict her playing tennis at a young age. In light of the fact that the publisher did not use the photo for the reason it was created, it transformed the function of the work and this transformation was sufficient to support the defense of fair use. The district court further noted that its finding did not give publishers free reign to copy and paste copyrighted images whenever they appeared on Instagram. Instead, it drew a line that balanced photographers’ interests in protecting their copyrights with reporters’ interest in covering social media events.
The district court further determined that the publisher’s status as a "for-profit" publisher did not diminish the transformative nature of the work. Beyond alleging that the publisher was a for-profit entity and that it had published the article alongside advertisements, the photographer did not present any evidence showing that the publisher derived any commercial benefit from embedding the Instagram post in its article. Mere speculation that the publisher had generated profits or otherwise benefitted from the use of the photograph was not sufficient to establish a link between the publisher’s commercial gain and its copying that lessened the transformative nature of the publisher’s use.
Nature of copyrighted work. Acknowledging that an image of a famous athlete playing sports had both informational and creative elements, the district court explained that in this case, the photograph did not incur the same protections as an unpublished work because the photographer had published the work on his own social media page and because Wozniacki had shared in on her Instagram. Hence, the nature of the work factor supported the fair use doctrine, the district court concluded.
Amount and substantiality of portion used. The proportion of the original work used factor also weighed in favor of fair use in this case. In embedding Wozniacki’s Instagram post in its article, the publisher did not control how the photograph was presented. Wozniacki herself chose to crop the image and use a lower resolution version of it in her post. The district court rejected the photographer’s argument that the publisher could have (1) commissioned its own photojournalist to photograph Wozniacki; (2) published the story without any photographs; or (3) obtained a license from the photographer before publishing the story. These options would have defeated the purpose of the story which was inform readers about Wozniacki’s announcement on social media.
Effect of use on market. There was no evidence that the use of the photograph in the article competed with the photographer’s business or affected the market or value of the photo in any way. In addition, the Instagram post had used a cropped, low-resolution version of the photo that would be a poor substitute for the original. Thus, the effect of use on the market factor also supported a finding of fair use, the district court concluded.
This case is No. 2:20-cv-01552-ARR-SIL.
Attorneys: Richard Liebowitz (Liebowitz Law Firm, PLLC) for Michael Barrett Boesen. Moish Eli Peltz (Falcon Rappaport & Berkman PLLC) for United Sports Publications, Ltd.
Companies: United Sports Publications, Ltd.
MainStory: TopStory Copyright TechnologyInternet GCNNews NewYorkNews
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