Eleventh Circuit Crops Real Estate Tycoon Out of the Picture

In Katz v. Google, Inc., No. 14-14525, 2015 WL 5449883(11th Cir. Sept. 17, 2015), the Eleventh Circuit upheld the district court’s grant of summary judgment, finding that Irina Chevaldina’s use of Raanan Katz’s copyrighted, candid photograph of himself constituted fair use. Raanan Katz is a commercial real estate tycoon who owns and operates shopping centers. In 2011, professional photographer, Seffi Magriso, snapped a candid photograph of Katz which was then published in an online article about Katz buying a basketball team. In Katz’s opinion, the photo is unflattering and embarrassing. Irina Chevaldina, a disgruntled former tenant of Katz’s, created a blog devoted to criticizing Katz and his business practices. She found the photo through a Google image search and reproduced it in 25 of her blog posts. In 2012, Magriso assigned all of his rights in the photo to Katz. Subsequently, Katz filed a complaint against Chevaldina alleging direct copyright infringement. The original complaint also named Google Inc. as a defendant for contributory copyright infringement. In his amended complaint, however, Katz omitted Google Inc. as a defendant. The district court granted summary judgment to Chevaldina and Katz appealed.

The only issue before the court on appeal was whether Chevaldina’s use of the photo in her blog posts constituted fair use. Under Section 107 of the Copyright Act, “the fair use of a copyrighted work . . . for purposes such as criticism [or] comment . . . is not an infringement of copyright.” 17 U.S.C. § 107 (2012). In deciding this issue, the Eleventh Circuit weighed the following four factors: 1) the purpose and character of the allegedly infringing use; 2) the nature of the copyrighted work; 3) the amount of the copyrighted work used; and 4) the effect of the use on the potential market of the copyrighted work.

In evaluating the first factor, the court considered 1) whether the use served a nonprofit educational purpose, rather than commercial and 2) the degree to which the work was a transformative use. Given that Chevaldina’s blog posts sought to educate others about Katz, the court found her use of the photo primarily educational. Although Katz pointed to her intentions to write a book as commercial gain, the Eleventh Circuit found this link “attenuated” because she neither wrote a book nor made any profits. Moreover, the court found Chevaldina’s use transformative because she used the photo to ridicule and satirize Katz’s character. Thus, the first factor weighed in favor of fair use.

The court also found that the second factor—the nature of the copyrighted work—weighed in favor of fair use. The court considered whether the photo was previously published, and whether the photo was primarily creative or factual. It was undisputed that the photo was published prior to Chevaldina’s use. Additionally, the Court found the photo was primarily a factual work because the Photo was candid, and there was no evidence that the photographer had any influence over Katz’s expression. The second factor therefore weighed in favor of fair use.

The third factor considers the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The Eleventh Circuit noted that copying any less of the photo would have made it useless to Chevaldina’s story. Accordingly, the court held the third factor neither weighed for nor against a finding of fair use. Finally, the court found that the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, weighed in favor of fair use. In assessing this factor, the court considered whether Chevaldina’s use of the photo would materially impair Katz’s incentive to publish the work. Given that Katz specifically obtained the copyright to prevent publication of the photo, the court found there was no potential market for his work. Therefore, the fourth factor weighed in favor of fair use.

In conclusion, the Eleventh Circuit found that factors one, two, and four weighed in favor of fair use while the third factor was neutral. Therefore, the court held the district court did not err in granting summary judgment to Chevaldina because her use of the photo constituted fair use.

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