It is no secret about the proliferation of copyright lawsuits that have been filed over the past four years over the unauthorized use of photos online, many against media companies that seek to shield themselves from liability with a fair use defense. A large number of these suits (over 1,600 at last count) have been brought by New York-based plaintiff’s lawyer Richard Liebowitz. A photo use lawsuit filed in August 2018, which was the subject of a recent decision on a motion to dismiss, Yang v. Mic Networks, Inc., is no exception.

In that case, a photographer by the name of Stephen Yang took a photo of an executive by the name of Dan Rochkind in a Manhattan bar. The New York Post licensed the photo for use as part of a piece that it ran on April 12, 2017 about Rochkind’s dating experiences under the title “Why I Don’t Date Hot Women Anymore.”

For reasons that can be readily gleaned from its title, the story engendered significant criticism. Mic Networks covered the criticism in its own next day story “Twitter is skewering the ‘New York Post’ for a piece on why a man ‘won’t date hot women’” in its Mic online publication. As part of its piece, Mic included a screenshot of the New York Post article and the upper half of the licensed photo as it appeared as part of the Post’s original story.

After unsuccessfully demanding payment for publishing his photo, Yang sued Mic in the Southern District of New York for copyright infringement. Mic filed a motion to dismiss, citing fair use, and the court agreed.

On the motion to dismiss, the court ran through the four factors that make up a fair use analysis in the copyright realm — (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or value of the copyrighted work — but focused, as many fair use analyses tend to do, on whether Mic’s use was transformative, which is a prong of the first factor.

The court found Mic’s use of the photo to be transformative for three reasons. First, the screenshot clearly served to illustrate why the original article had been controversial and was accompanied by Mic’s commentary too. Second, the Mic article not only commented on Rochkind and the controversy, but also used the screenshot to both criticize and mock the original Post article, which was a much different purpose than that the original use of the photo. Third, the Mic story used the photo to paint Rochkind in a “harshly negative light”, while the original use of the photo was to paint him in a positive or neutral light, which is transformative.

The court did consider other factors, such as the fact that the screenshot was used by Mic for commercial benefit, and that Mic had cut off part of the photo, removing a photo credit to Yang, which could support a finding of bad faith. The court also dismissed as implausible Yang’s assertion that Mic should have used embedded tweets of the original photo, or taken its own photo of Rochkind instead. Taking into account all factors, the court dismissed the case, finding Mic’s use to be clearly fair and transformative.

Yang has filed a motion for reconsideration of the decision and Mic also has a motion for attorneys’ fees and sanctions pending as of the date of this post.