Here’s an interesting “transformative use” case that flew under the radar. Thanks to the good people at TheTMCA.com for uncovering it. 1
The case is BWP Media USA, Inc v. Gossip Cop Media Inc. 2
BWP Media is a photography licensing service. Gossip Cop is “a for-profit website that presents celebrity gossip news and opines on the veracity of celebrity news stories published by unaffiliated third-party outlets.” 3
At issue were three photographs copied and posted by Gossip Cop on their website without permission or license fee. The photographs at issue were:
- A photograph of the actors Mila Kunis and Ashton Kutcher walking down the street
- A photograph of the actor Robert Pattinson slumped over in the seat of a car
- A photograph of the model Liberty Ross mid-stride, in which she appears not to be wearing her wedding ring. 4
All of these photographs were taken by paparazzi photographers and then assigned to BWP for licensing. Indeed, the Kunis/Kutcher photo commanded a $1,000 license fee from US magazine and the Pattison photo commanded a $4,000 license fee for E! Online who requested 24 hour exclusivity. 5
Gossip Cop “copied each of these photos from third-party celebrity gossip websites that had themselves licensed the images from Plaintiff; Defendant then posted ‘screen grabs’ of the photos on its own site, adding to each an assessment of whether the story that accompanied the photo on the third-party website was ‘real’ or ‘rumor,’ as displayed on a ‘real-to-rumor scale’ posted alongside the image.” 6
Failing to request permission, BWP sued Gossip Cop for copyright infringement.
Gossip Cop’s defense? All together now, everyone:
IT’S A TRANSFORMATIVE USE!
Since this case is from the Southern District of New York, the decisions of the Second Circuit Court of Appeal are binding precedent on it. And, as described before on this blog, the Second Circuit is absolutely smitten with the concept of “transformative use.” 7
Yet, the Judge ruled that Gossip Cop’s use was not transformative, and that the use of the images was, in fact, copyright infringement.
Wow! How did that happen?
Because Gossip Cop did not opine on or mention anything that was contained in the photographs. They merely used them to illustrate their story. The Court states:
“Nowhere in its stories accompanying the Kunis/Kutcher or Pattinson Images does Defendant comment or report on the images in question, nor does it critique the source websites’ use of those photos. It does not say, for instance, ‘The Sun presented this image as a picture of Kutcher and Kunis in London; that is incorrect, our sources tell us the photo was taken in New York.’ Defendant comments on the falsity of the stories that appeared in The Sun and in Hollywood Life, respectively; it says nothing at all about the images having being misrepresented.” 8
“In short, Defendant’s republication of the Kunis/Kutcher and Pattinson Images adds no new meaning or expression to the images; contributes no information to its articles; and is otherwise extraneous to its reporting function. As a consequence, Defendant’s use of the Kunis/Kutcher and Pattinson Images cannot be said to constitute transformative news reporting.” 9
As to the Ross image:
“[T]he article accompanying the Ross Image does not even mention the story upon which it is purportedly reporting. The sole references to TMZ, the site from which the Ross Image was taken, are the letters “TMZ” in parentheses below the photograph and a watermark on the image itself. No text from the TMZ article is referenced or cited; the existence of the TMZ article is not even acknowledged. In short, there is no conceivable way in which Defendant’s story could be viewed as reporting on the veracity of the TMZ story.” 10
“[A]llowing Defendant to copy Plaintiff’s images directly from third-party licensees and to frame that copying as ‘news reporting,’ when Defendant’s articles provide no comment on the licensees’ use of the respective photographs — and thus, on the facts of this case, add no additional meaning or expression to those photographs — would effectively allow Plaintiff to license its images only once; after an initial licensee published the photo, third parties could then copy it with impunity.” 11
At last! Someone gets it!
Having rejected the “transformative use” argument, the remainder of Gossip Cop’s case falls like a house of cards.
- Gossip Cop’s website is for profit, and thus the use was commercial and not protected by “transformative use”
- All of the photos were used, not parts, and were reproduced in a large scale format, “far larger than necessary to serve as identifying aids” 12
- The use by Gossip Cop is exactly the same use that BWP routinely issues licenses for. To say that Gossip Cop’s use was a “fair use” would destroy BWP’s market.
The only factor which favored Gossip Cop, and even then, only slightly, was the “nature of the work,” meaning that the photos were “taken to document their subjects rather than to serve as art pieces.” 13
That is not to say that any reproduction of a photo within a news context cannot be a fair use. In the case of the “monkey selfie,” the photograph was the story, and it would be hard to fully comment on the controversy without reproducing the photograph. 14
But remember, if appealed, this will head up to the Second Circuit. However, the Second Circuit might agree with the trial Judge here. Consider this passage:
“[T]he would-be fair user of another’s work must have justification for the taking. A secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message. Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it. A taking from another author’s work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.” 15
For now, this is one cop who’s been busted.
- Gossip Cop Gets Cuffed For Copyright Infringement ↩
- BWP Media USA, Inc. v. Gossip Cop Media, Inc. There does not currently appear to be a WestLaw cite for this decision. ↩
- Order at 2 ↩
- Id. ↩
- Order at 7 ↩
- Order at 3 ↩
- Marching Bravely Into the Quagmire: The Complete Mess that the “Transformative” Test Has Made of Fair Use ↩
- Order at 15-16 ↩
- Order at 17 ↩
- Order at 18 ↩
- Order at 31 ↩
- Order at 25, footnote 7 ↩
- Order at 24 ↩
- Monkey in the Middle: Who Owns the Monkey “Selfie”? ↩
- Author’s Guild v. Google, Inc., 2015 WL 6079426 Second Circuit Court of Appeals 2015 at 7 ↩