Being In “The Right Place At The Right Time” Is All That Is Needed To Create A Copyrightable Photograph

Stephen Carlisle April 23, 2020

A recent decision out of the Eastern District of New York featured a significant pushback on the theory that some works do not offer enough “creativity” to qualify for copyright protection. Coming just days before the reversal of the Katy Perry Dark Horse verdict on a similar theory, ¹ the case illustrates how litigants have started to misuse and distort the concepts of “originality” and “creativity” in order to attack the bedrock principles of copyright law.

The case, Cruz v. Cox Media Group, ² has all the marking of a true “David versus Goliath” tale, which ends, appropriately enough, with Goliath taking the fall.

The Plaintiff, Alex Cruz, works for a Brooklyn furniture store. The Defendant, Cox Media Group, is “a national media company with 13 television stations, 61 radio stations, four newspapers, and 72 websites.” ³ You would think that a media company of this size would have a pretty good understanding of copyright law, and how it works. Yet, going through the opinion, one finds that Cox’s arguments are extreme interpretations that garner little more than disbelief that they were seriously advanced.

Cruz was on his way to his girlfriend’s apartment, when he stumbled upon a scene of the NYPD arresting a suspected terrorist. He took a picture with his iPhone of the scene, and sent the picture to a friend. His friend posted the picture to his own Instagram account and took credit for being the author of the photograph. ⁴ (Nice friends you’ve got there). When Cruz’s girlfriend posted a correcting post on Instagram, media companies began contacting Cruz for a license for the photo. Cruz wound up entering into a license agreement with both CNN and NBC. ⁵

Guess who didn’t ask for a license? Cox Media, of course. They posted the photo on their WSB-TV (Atlanta) website, as well as the station’s Facebook and Twitter pages. They also failed to credit Cruz as the photographer in any of the postings of his photo. ⁶ I guess it must have slipped their minds.

In the inevitable infringement lawsuit that follows, Cox argues that despite the copyright registration obtained by Cruz, the photo is not copyrightable. “Cruz ‘did not make a single creative choice’ in taking the Photograph … such that the Photograph does not possess the ‘modicum of creativity’ required to receive copyright protection.” ⁷

At this point I will pause to remind you that the company making this argument owns 13 television stations and 4 newspapers. The case so heavily relied upon by Cox, Oriental Art and Printing, Inc. v. Goldstar Printing Corp., ⁸ has been criticized by other Courts, and specifically this blog. ⁹ In short, its a poorly reasoned decision that does not understand the concept of independent creation.

Fortunately, the Court flatly rejects this.

“This argument misses the mark. As with almost any photograph, the Photograph reflects creative choices, including Cruz’s timing for when he took the Photograph. (Citation omitted) ‘[A] person may create a worthwhile photograph by being at the right place at the right time.’ (citation omitted). Indeed, Cruz’s recognition of what he considered a ‘big commotion’ (Citation omitted) and his decision to take the Photograph when he did (i.e. as law enforcement closed in on Saipov after he had been shot and was lying on the ground) were sufficient creative choices to meet the low threshold required for copyright protection.” ¹⁰ (emphasis added).

This argument being shot down, Cox’s next defense is (all together now) “fair use” and that its use was “transformative” because it “added context” to the photograph.

Nonsense, says the Court.

“Cox forgets that ‘[d]isplay of a copyrighted image or video may be transformative where the use serves to illustrate criticism, commentary, or a news story about that work.’ (emphasis original)… (‘[T]he use of an image solely to illustrate the content of that image, in a commercial capacity, has yet to be found as fair use.’).” ¹¹ (citation omitted).

“To nonetheless find that Cox’s use of the Photograph was fair would ‘eliminate copyright protection any time a copyrighted photograph was used in conjunction with a news story about the subject of that photograph. That is plainly not the law.” ¹²(citation omitted)

Thus, factor one, the purpose and character of the use runs “strongly” against Cox. Factor two, the “nature of the work used,” leans in favor of Cox, as the photo is “factual” in nature. ¹³

As to the third factor, the “amount and substantiality of the taking” also weighs against Cox. Hard to argue when the entire photograph was used. Cox counters that it had an “editorial need” to use all of the photo. Again, the Court is unpersuaded.

“[A]s explained above, Cox’s use of the Photograph was not transformative—Cox simply thought (apparently like its competitors CNN and NBC) that the Photograph had certain qualities that would make it a good complement to the Article.” ¹⁴

Yet, it is the fourth factor, the “market effect,” where Cox strikes its most tone deaf argument of the case.

“[P]ublic interest in receiving accurate information regarding [Saipov’s] arrest … outweigh[ed] the personal gain to Plaintiff of licensing a photo he did not even know was newsworthy until news organizations told him so.” ¹⁵

Remember, Cox owns 13 TV stations and 4 newspapers. So the wholesale swiping of someone else’s copyrighted material is OK, because of the “public interest in receiving accurate information”?

Nothing like biting the hand that feeds you.

But in any event, “[i]f Cox could simply ‘use such images for free, there would be little or no reason to pay for works.’ says the Court.” ¹⁶

No fair use for Cox. Summary judgement for Plaintiff. Doubtlessly, a motion for attorneys fees will follow shortly.

So why go to the expense of a trial? You’re a huge media company. You know how copyright works and you know how to license works. Did you really think these arguments were so persuasive as to warrant the expense of litigation? Cut Mr. Cruz a nice size check to license the photograph, include a few extra bucks for his trouble, and be done with it. Much simpler and cheaper than paying two lawyers to litigate this case all the way to summary judgement.

Copyright protects the works of everyone. Even if they’re not a professional artist. Even if they work in a furniture store. Copyright is our Constitutional right.

As the Supreme Court of the United States held:

“[T]he promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report.’” ¹⁷