Plaintiff, an attorney and the vice chairperson of the California Republican Party, brought suit against MungerGames.net, a website critical of the California Republican Party, for the unauthorized use of her photo. The website posted an article about plaintiff and paired it with a headshot, for which she owned the copyright, without plaintiff’s authorization. Since MungerGames is run by bloggers who choose to remain anonymous, plaintiff could sue the defendant only as Does 1 through 10. Plaintiff sought $250 in damages and injunctive relief, as well her attorneys’ fees and costs.
One of the Doe defendants answered and moved for judgment on the pleadings or, in the alternative, summary judgment, arguing that the doctrine of fair use barred plaintiff’s claims as a matter of law.
The district court granted summary judgment, noting that the use of the headshot was not for a commercial purpose, and even if it had been, its use was transformative because the photo of plaintiff accompanied an article criticizing her. Defendant’s use had no negative impact on its potential market or value of the photo, which was used primarily in connection with political activities.
Although the court concluded that the website was entitled to a fair use defense, it declined to grant attorneys’ fees to defendant, finding that plaintiff’s position “was not completely unreasonable.”