This is a copyright infringement lawsuit. Hirsch, a professional photographer, took a photo of Santino Boderick, who was an associate of a well-known hiphop artist, Bobby Shmurda. Hirsch licensed the photograph to the New York Post, where it appeared in “Page Six”. Complex, the defendant, reported on the same story and published a video that included a screenshot of Page Six. The video is 1:44 minutes long; the screenshot of the photo lasted for at least four seconds. (The photo was blurred for two seconds and the video focused on the headline.) Hirsch sued Complex for copyright infringement. Complex defended that its use was de minimis and not actionable, that it qualified for fair use, and that it was authorized by the license Hirsch granted to Page Six.
The court says it cannot say as a matter of law that Complex’s use was de minimis. The court looks to a Second Circuit case involving footage of a poster on a television show where the court denied summary judgment. The court also considered guidance from the Librarian of Congress saying that use of visual works by public broadcasting entities (either in the background or featured) required payment of royalties. Courts have held that use as short as three seconds is not de minimis. Indeed, the Southern District of New York denied a motion to dismiss claims brought by the same plaintiff against HBO. In that case, the photo was visible for only two seconds.
The court also says it’s unable to find fair use as a matter of law. The court says the use is not transformative despite being in another medium. The court says that the nature of the work (photos taken for news-gathering purposes) favors fair use. The third factor cuts against a finding of fair use. Finally the court says the “effect on the market” factor also favors the photographer.
The de minimis argument is interesting and one that’s increasingly being litigated. The court has a pretty strict standard for dismissal.
We’ve seen a lot of momentum in the direction of finding fair use at the motion to dismiss stage, but as this case illustrates, the pendulum hasn’t even swing to the middle. For another case involving memes where the court declined to find fair use at the motion to dismiss stage, see this post from last week: “Fair Use for “Meme” Can’t Be Decided on Motion to Dismiss—Philpot v. Alternet Media”
Finally, the last argument is reminiscent of a copyright defense in a case that has received a lot of attention on this blog: AFP v. Morel. The court could have probably rejected the argument by simply citing to Morel (which does not warrant a mention for some reason).
Eric’s Comments: Any opinion that starts out with the following introduction will get my attention: “This case, which is factually very straightforward but presents a whole host of legal issues, would — in the parlance of law school — make for a good issue-spotter examination.”
Once again, photos create unexpected legal problems for folks. The court says “For the first two seconds, the Photograph is clear as day, and its prominence unmistakable — it is the thing being featured in the video and takes up most of the screen.” News videos routinely show screenshots of third party newspaper coverage of the same topic. Usually the screenshot highlights the headline, though sometimes it highlights a pull quote. It’s unclear if screenshotting newspapers is categorically problematic. However, this opinion suggests that any collateral copyrighted material in the screenshot–such as a photo the newspaper licensed from a third party–is liability bait, no matter how briefly it’s shown. Fortunately, there is an obvious but suboptimal solution. Video producers taking screenshots of third party newspapers need to blur EVERYTHING–ESPECIALLY PHOTOS–other than the minimum they need to establish their point.
I agree with Venkat that it’s borderline-mockable to see defendants argue that they can freely recycle photos simply because they were posted to social media. The argument would create such a giant loophole that I don’t think courts will accept it.
Case citation: Hirsch v. Complex Media, 2018 US Dist. LEXIS 209701 (S.D.N.Y. Dec. 10, 2018)
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