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District court holds Cox Media Group liable for copyright infringement due to publication of bystander’s photograph of 2017 terrorist attack in conjunction with news story, finding no fair use.
In October 2017, as a terrorist attack was unfolding in lower Manhattan that would leave eight dead and 11 injured, plaintiff Alex Cruz reached for his iPhone and took a photograph of the suspect being apprehended by New York City police officers. After Cruz’s friend began circulating the photo on Instagram, several media companies contacted Cruz seeking permission to publish the photograph. CNN and NBC News each entered into licensing agreements with Cruz. Cox Media Group, however, published the photograph on the website of one of its local news outlets, WSB-TV, without licensing it from Cruz and without crediting Cruz as the photographer. Approximately a week after the terrorist attack and publication of the photograph by Cox, Cruz registered the photograph with the U.S. Copyright Office. In February 2018, Cox sued Cox for copyright infringement.
Cruz moved for partial summary judgment, seeking judgment on Cox’s liability for infringement and dismissal of Cox’s fair use affirmative defense. Cox cross-moved for partial summary dismissal, seeking a judgment of no infringement or, in the alternative, fair use. Cox first argued that Cruz failed to establish that his photograph possessed a sufficient “modicum of creativity” or originality to qualify for copyright protection. The court, however, rejected this argument. It noted that photographs may be original in their rendition, timing and creation of their subjects. As the court stated, “[a]lmost any photograph may claim the necessary originality to support a copyright,” except in rare cases such as “a photograph of a photograph of other printed matter” that “amounts to nothing more than slavish copying.” Here, the timing of Cruz’s photograph—his recognition of a commotion and his decision to capture the photograph when he did—met the low threshold for originality.
The court declined to apply Oriental Art Printing v. Goldstar Printing Co., a case in which copyright protection did not extend to photographs of Chinese food menu items, because unlike in that case, Cruz’s photograph did not serve a “purely utilitarian purpose” and did not raise similar concerns regarding permitting one entity to monopolize the market for printing menus depicting commonly served Chinese dishes.
Cox alternatively argued that its publication of Cruz’s photograph constituted fair use, but the court rejected that argument as well. The court proceeded to consider the four statutory fair use factors: (1) the purpose and character of the work, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market or value of the copyrighted work. Only the second factor weighed in favor of Cox. As the court explained, the law recognizes a greater need to disseminate factual works than works of fiction, and publicly released works qualify for less protection from use by others than do unpublished materials. Here, Cruz’s photograph was “factual in nature” and was published by Cruz’s friend prior to Cox’s use.
The first, third and fourth factors, however, all weighed against Cox. As for the “purpose and character” factor, the court held that Cox did not use Cruz’s photograph for any transformative purpose. In other words, Cox did not display the photograph to illustrate criticism, commentary or a news story about the photograph itself and did not add any new expression, meaning or message to the photograph. Instead, Cox used the photograph solely as a visual aid to the content of its news article—to illustrate the fact that the suspected terrorist was taken into custody.
As to the amount and substantiality of the portion used, this factor weighed against Cox because it used the entire photograph in its news article.
As to the effect of the use on the market, the court held that this factor weighed against Cox because Cruz had demonstrated an interest in entering into the market for the photograph when he executed licensing agreements with CNN and NBC, and Cox’s unauthorized use of the photo usurped Cox’s market. Cox argued that the public interest in receiving accurate information regarding the suspected terrorist’s arrest outweighed the personal gain to Cruz of licensing a photograph that, according to Cox, he “did not even know was newsworthy until news organizations told him so.” But the court rejected this argument, stating that Cox had failed to demonstrate that the photograph was necessary to convey vital factual information and that “[i]f Cox could simply use such images for free, there would be little or no reason to pay” for them.
Summary prepared by Frank D’Angelo and Marwa Abdelaziz
Cruz moved for partial summary judgment, seeking judgment on Cox’s liability for infringement and dismissal of Cox’s fair use affirmative defense. Cox cross-moved for partial summary dismissal, seeking a judgment of no infringement or, in the alternative, fair use. Cox first argued that Cruz failed to establish that his photograph possessed a sufficient “modicum of creativity” or originality to qualify for copyright protection. The court, however, rejected this argument. It noted that photographs may be original in their rendition, timing and creation of their subjects. As the court stated, “[a]lmost any photograph may claim the necessary originality to support a copyright,” except in rare cases such as “a photograph of a photograph of other printed matter” that “amounts to nothing more than slavish copying.” Here, the timing of Cruz’s photograph—his recognition of a commotion and his decision to capture the photograph when he did—met the low threshold for originality.
The court declined to apply Oriental Art Printing v. Goldstar Printing Co., a case in which copyright protection did not extend to photographs of Chinese food menu items, because unlike in that case, Cruz’s photograph did not serve a “purely utilitarian purpose” and did not raise similar concerns regarding permitting one entity to monopolize the market for printing menus depicting commonly served Chinese dishes.
Cox alternatively argued that its publication of Cruz’s photograph constituted fair use, but the court rejected that argument as well. The court proceeded to consider the four statutory fair use factors: (1) the purpose and character of the work, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market or value of the copyrighted work. Only the second factor weighed in favor of Cox. As the court explained, the law recognizes a greater need to disseminate factual works than works of fiction, and publicly released works qualify for less protection from use by others than do unpublished materials. Here, Cruz’s photograph was “factual in nature” and was published by Cruz’s friend prior to Cox’s use.
The first, third and fourth factors, however, all weighed against Cox. As for the “purpose and character” factor, the court held that Cox did not use Cruz’s photograph for any transformative purpose. In other words, Cox did not display the photograph to illustrate criticism, commentary or a news story about the photograph itself and did not add any new expression, meaning or message to the photograph. Instead, Cox used the photograph solely as a visual aid to the content of its news article—to illustrate the fact that the suspected terrorist was taken into custody.
As to the amount and substantiality of the portion used, this factor weighed against Cox because it used the entire photograph in its news article.
As to the effect of the use on the market, the court held that this factor weighed against Cox because Cruz had demonstrated an interest in entering into the market for the photograph when he executed licensing agreements with CNN and NBC, and Cox’s unauthorized use of the photo usurped Cox’s market. Cox argued that the public interest in receiving accurate information regarding the suspected terrorist’s arrest outweighed the personal gain to Cruz of licensing a photograph that, according to Cox, he “did not even know was newsworthy until news organizations told him so.” But the court rejected this argument, stating that Cox had failed to demonstrate that the photograph was necessary to convey vital factual information and that “[i]f Cox could simply use such images for free, there would be little or no reason to pay” for them.
Summary prepared by Frank D’Angelo and Marwa Abdelaziz
