The U.S. District Court for the Southern District of New York recently found that Gossip Cop, a website that rates celebrity gossip on a scale of “real” to “rumor,” infringed the copyrights in three photographs of famous celebrities.  The Court’s decision is a good reminder about the importance of the “purpose and character of the work” element of the first fair use factor.

The three images at issue were taken from articles on popular websites operated by TMZ, The Hollywood Life, and The Sun.   One photograph featured actors Mila Kunis and Ashton Kutcher walking down the street in a story about Kunis and Kutcher moving to London, which the defendant determined to be a “rumor.” The second photograph showed actor Robert Pattinson slumped over in the seat of a car, where the Hollywood Life included the image as part of a story headlined “Robert Pattinson Parties with Katy Perry Before His Birthday.” The defendant determined this to be a rumor as well. The final photograph was taken from TMZ, which portrayed the model Liberty Ross mid-stride, in which she appears not to be wearing her wedding ring.

Although the Gossip Cop made no comment on the story published by TMZ, it deemed the story to be “real.” The rights to the images were owned by plaintiffs BWP Media USA Inc. and National Photo Group, LLC who license their photographs to various print and online publications. The three websites from which the defendant copied the screenshots had the proper licenses from the plaintiffs to display the photos.

Using a Photo for the Same Purpose is Not Transformative under the First Fair Use Factor

In trying to fend off the infringement claim, Gossip Cop claimed its use was “transformative” because it was commenting on the truthfulness of other sources’ news reporting. The problem with Gossip Cop’s argument was that nowhere in the stories accompanying the images did Gossip Cop “comment or report on the images in question, nor did it critique the source websites’ use of those photos.” In using the celebrity images at issue, Gossip Cop commented on the truthfulness of the stories that appeared in The Sun and Hollywood Life but said nothing at all about the images being misrepresented. By adding the images to its report, Gossip Cop’s use was to illustrate its stories, which was precisely the same use as the original stories. The court observed that the fair use doctrine would have protected Gossip Cop’s use had it included a statement along the lines of “The Sun presented this image as a picture of Kutcher and Kunis in London; that is incorrect, our sources tell us the photo was taken in New York.”

There is a difference when a photo is the story and when its contents are the story.

Gossip Cop argued that the Ross image was fair use because the image itself is the story. The Ross image portrayed the model Liberty Ross mid-stride, in which she appears not to be wearing her wedding ring, and was accompanied with the headline “Rupert Sanders Wife Liberty Ross Spotted Without Wedding Ring (PHOTO).” Gossip Cop cited Nunez v. Caribbean Int’l News Corp. in support for its argument. The court, in dismissing this argument, held that Gossip Cop confused the situation in which the photograph is the story (as was in Nunez) and when the contents of the photograph are the story. In Nunez, a controversy had arisen regarding the propriety of certain photographs having been taken, so the existence of the photographs was central to reporting on the controversy, and “[i]t would have been much more difficult to explain the controversy without reproducing the photographs.” In Gossip Cop, however, the fact that the photo existed was not in controversy; rather, it was the contents of the Ross image that was newsworthy. Under this line of reasoning, publishing the photos in this blog post would be transformative because the images themselves are the story and this post is commenting on how their use by a celebrity gossip website was found infringing. The court concluded that “[if] this use of the Ross Image [was] considered transformative ‘news reporting,’ an entity could take any photograph, announce the photograph’s contents, and call that ‘fair use’.”

Ultimately, this case boiled down to using a photo for the precise reason it was created for, which does not transform the purpose and character enough for fair use. This holding does not put an end to the news reporting fair use exception but reinforces the need to alter the purpose or context of the original work by providing commentary or criticism on the original work.