Declining to hold that media company’s use of concert photographer’s image of Willie Nelson in “meme” posted to Facebook page constituted fair use, district court denies motion to dismiss copyright infringement claim.
Plaintiff Larry Philpot, a photographer whose work centers on concert events across the U.S., sued defendant Alternet Media Inc., the operator of an alternative news website and accompanying Facebook page. In 2009, Philpot photographed music legend Willie Nelson in a performance at Farm Aid 2009 in St. Louis, Missouri, and subsequently registered the photograph for copyright protection. Philpot later made the photograph available for use through the website Wikimedia pursuant to the terms of the Creative Commons Attribution 2.0 Generic license. The website identified Philpot as the photograph’s author and copyright owner and stated that in any use, the photograph must be attributed to Philpot.
Philpot alleges that in 2015, Alternet used his photograph of Nelson in a “meme” it posted to its Facebook page, without obtaining Philpot’s permission or attributing the photograph to him. The meme, Philpot alleged, featured the photograph with the quote “We need more values like this,” and the following text was superimposed over the photograph: “Rednecks, hippies, misfits — we’re all the same. Gay or straight? So what? It doesn’t matter to me. We have to be concerned about other people, regardless. I don’t like seeing anybody treated unfairly. It sticks in my craw. I hold on to the values from my childhood.” Philpot subsequently sent a cease and desist letter to Alternet, and when Alternet declined to respond, Philpot commenced litigation, asserting claims for copyright infringement and violation of the Digital Millennium Copyright Act.
Alternet moved to dismiss Philpot’s copyright infringement claim, arguing that its post featuring the photo constituted fair use as a matter of law. The district court disagreed. Although noting it is “unusual . . . to analyze fair use on a 12(b)(6) motion” due to the “limited access to all potentially relevant and material facts needed to undertake the analysis” courts would have at that stage, the district court nevertheless considered the four statutory fair use factors: (1) the purpose and character of the use, including whether the use was transformative in the specific context used; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the work used; and (4) the effect of the use on the potential market for the work. All four factors, the court held, required further factual inquiry and could not be resolved at the pleading stage.
As to the first factor — whether the use of the copyrighted work, in the specific context used, was transformative — the court held that Philpot’s complaint did not sufficiently allege either his purpose in taking the photo or Alternet’s purpose in reproducing it. Alternet argued that by adding the quote, it used the photograph to provide political commentary and that the use of the photograph superseded Philpot’s original purpose. While that was possible, the court stated, “At this stage of the pleadings, Philpot credibly argues that the photograph, as used by Alternet, was merely for the purpose of identifying who the quote came from, thus leaving the purpose unchanged: to identify Willie Nelson.” Determining whether Alternet’s use of the photograph was transformative, the court held, required “additional facts” and was “more appropriate for the summary judgment phase.”
Similarly, the court concluded that the second factor, the nature of the plaintiff’s work, weighed against dismissal because it could not make a determination as to the image’s “unique creativity” without further factual development. The court likewise held that evaluating the third fair use factor, which requires assessing the amount and substantiality of the portion of the work used in relation to the work as a whole, required further factual development. Despite the fact that Alternet appeared to use the entire photograph, the court concluded that it would nonetheless need to compare the amount of the work used with the purpose of the copying, which had not yet been established. As for the fourth factor, the effect of the use on the potential market for the work, the court again opined that an assessment was premature. Rejecting Alternet’s argument that because its use was purportedly transformative, the effect on the original market for Willie Nelson photographs would be minimal, the court agreed with Philpot that discovery regarding the relevant market for his photograph would be necessary.
In addition to seeking dismissal of Philpot’s infringement claim, Alternet also moved to dismiss the DMCA claim, in which Philpot argued that Alternet removed copyright management information metadata from the Nelson image and distributed it knowing that the CMI was removed. The court granted this portion of Alternet’s motion without prejudice to Philpot’s repleading it. As the court explained, to sufficiently plead a claim under the DMCA based on the removal of CMI, a plaintiff must make an “affirmative showing” that a defendant possessed the requisite mental state of knowing, or having reasonable grounds to know, that his actions would induce, enable, facilitate or conceal infringement. The court found that Philpot’s bare allegation that “Alternet should have known its alleged removal of the CMI of Willie Nelson’s photograph would induce, enable, facilitate or conceal an infringement of Philpot’s rights” was conclusory and failed to plead any facts demonstrating that Alternet had the requisite mental state.