The U.S. Court of Appeals for the Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of defendant based on an assertion of fair use of an unflattering, candid headshot photograph of plaintiff. Raanan Katz v. Irina Chevaldina, Case No. 14-14525 (11th Cir., Sept. 17, 2015) (per curiam).
Irina Chevaldina (Chevaldina) was a commercial tenant of Raanan Katz (Katz), a commercial landlord and also part owner of the Miami Heat of the NBA. After the business relationship between the two ended badly, Chevaldina started a blog criticizing Katz and his business practices. In her blog, Chevaldina repeatedly posted a headshot photograph of Katz which she found on an Israeli website using Google search engine. Katz thought the photograph was very unflattering and, after acquiring the photograph from the photographer, claimed Chevaldina infringed his newly acquired copyright in the photograph.
According to § 107 of the Copyright Act “the fair use of a copyrighted work . . . 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 deciding whether a defendant’s use of a work constitutes fair use, courts weigh the following factors: the purpose and character of the allegedly infringing use, the nature of the copyrighted work, the amount of the copyrighted work used, and the effect of the use on the potential market or value of the copyrighted work. These statutory factors are not to be treated in isolation from one another.
The district court granted Chevaldina’s motion for summary judgment of dismissal based on her fair-use defense, concluding that her use of the photograph was non-commercial, that her use was “transformative” because she used it for a different function and meaning than the original use of the photograph on the Israeli website, that it captured Katz in a public setting and was used simply to identify him, and that there could be no harm to the market value of the photograph since Katz did not have any interest in publishing the photograph. Katz appealed.
The 11th Circuit affirmed the grant of summary judgment based on fair use, concluding that Chevaldina’s use of the photograph was non-commercial because her blog sought to educate and inform others of Katz business practices and, as such, it was educational. In addition, the court concluded that her use of the photograph was transformative because “she used Katz’s purportedly ‘ugly’ and ‘compromising’ appearance to ridicule and satirize his character.” Moreover, Chevaldina’s use of the photograph was primarily factual, not creative, and the photograph had been previously published, all of which weighs in favor of fair use. The 11th Circuit concluded that the third factor (amount of the work used) was neutral because, although Chevaldina used the whole photograph, that “to copy any less of the image would have made the picture useless to [Chevaldina’s] story.” Lastly, the court concluded that Chevaldina’s use of the photograph would not materially impair Katz’s incentive to publish the work as there is no potential market for his work and the suit was Katz’s attempt to utilize copyright as an instrument of censorship against unwanted criticism.
