Raanan Katz v. Irina Chevaldina

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14525
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-22211-JLK
RAANAN KATZ,
an individual,
Plaintiff - Appellant,
versus
GOOGLE INC.,
a Delaware corporation,
Defendant,
IRINA CHEVALDINA,
an individual,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 17, 2015)
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Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Raanan Katz holds the copyright to a candid photograph (the Photo) of
himself in which his tongue protrudes askew from his mouth. Katz considers the
Photo unflattering and embarrassing.1 Irina Chevaldina copied the Photo into
several scathing blog posts she wrote about Katz and his business practices. Katz
appeals the district court’s grant of summary judgment to Chevaldina on his
copyright infringement claims, brought pursuant to 17 U.S.C. § 501. Katz argues
the district court erred in finding Chevaldina was entitled to summary judgment
based on her affirmative defense that her use of the Photo constituted fair use
under 17 U.S.C. § 107. Upon review, we affirm.
I. BACKGROUND
Katz is a minority investor in the Miami Heat basketball team and a
commercial real estate tycoon who owns and operates shopping centers through
corporate entities collectively known as RK Centers. In February 2011, Seffi
Magriso, a professional photographer, took a photograph of Katz while Katz was
standing courtside at a basketball practice in Jerusalem. The Photo is a candid
headshot of Katz in which his eyebrows are arched sharply upwards and his tongue
1
We make no independent determination as to whether the Photo is unflattering or
embarrassing. Construing the evidence in the light most favorable to Katz for the purposes of
summary judgment, however, we accept Katz’s own characterizations of the Photo as
aesthetically displeasing.
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is sticking out of his mouth. In Katz’s opinion, the Photo is “ugly,”
“embarrassing,” and “compromising.” Haaretz, an Israeli newspaper, published
the Photo online in an article about Katz’s interest in buying the Hapoel Jerusalem
basketball team.
Chevaldina is a disgruntled former tenant in one of Katz’s shopping centers.
She found the Photo through a Google image search. Chevaldina created a blog
devoted to sharply criticizing Katz and the business practices of RK Centers. From
May 3, 2011, to September 24, 2012, Chevaldina published 25 blog posts that
reproduced the Photo and criticized Katz. Chevaldina reproduced the Photo in her
blog posts in three ways: (1) copied in its unaltered, original state; (2) accompanied
by sharply worded captions; or (3) cropped and pasted into mocking cartoons. For
example, in a September 18, 2011 blog post where the Photo was copied in its
unaltered, original state, Chevaldina lambasted Katz for allegedly ripping off a
“young American Jewish single mother of [a] special needs child,” calling him
“the most immoral human-being in the world.” In a September 12, 2012, blog
post, Chevaldina criticized Katz’s litigation strategies as frivolous and copied the
Photo with a caption across Katz’s chest that says, “HE RIPPED-OFF SPECIAL
NEEDS LITTLE JEWISH GIRL.” In a February 19, 2012, post about Katz’s
preparation for a deposition, Chevaldina cropped Katz’s face and superimposed it
against a cartoon dunce hat.
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On June 3, 2012, Magriso assigned all of his rights in the Photo to Katz.
Katz then filed a complaint against Chevaldina alleging direct copyright
infringement. 2 The parties filed cross-motions for summary judgment. The
magistrate judge entered a Report and Recommendation (R&R) that recommended
granting summary judgment to Chevaldina because her use of the Photo
constituted fair use. Katz timely filed objections to the R&R. The district court
overruled the objections, adopted the R&R, and granted summary judgment to
Chevaldina. Katz timely appealed.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, viewing
all facts and reasonable inferences in the light most favorable to the nonmoving
party. Beal v. Paramount Pictures Corp., 20 F.3d 454, 458–59 (11th Cir. 1994).
“Summary judgment is proper when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Id.; see Fed. R. Civ.
P. 56(a).
III. DISCUSSION
The only issue in this appeal is whether Chevaldina’s use of the Photo in her
blog posts constitutes fair use, as a matter of law, under Section 107 of the
2
Katz’s original complaint also named Google Inc. as a defendant for contributory
copyright infringement. Katz filed an amended complaint omitting Google Inc. as a defendant,
but retaining the direct copyright infringement claim against Chevaldina.
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Copyright Act. Under Section 107, “[n]otwithstanding the provisions of sections
106 and 106A, the fair use of a copyrighted work . . . for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of copyright.” 17
U.S.C. § 107.
In deciding whether a defendant’s use of a work constitutes fair use, courts
must weigh the following four factors: (1) the purpose and character of the
allegedly infringing use; (2) the nature of the copyrighted work; (3) the amount of
the copyrighted work used; (4) and the effect of the use on the potential market or
value of the copyrighted work. Id. These four statutory factors are not to be
treated in isolation from one another. See Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 578, 114 S. Ct. 1164, 1170–71 (1994). Rather, they are “[a]ll are to be
explored, and the results weighed together, in light of the purposes of copyright.”
Id., at 578, 114 S. Ct. at 1171. Based on our weighing of the factors discussed
below, the district court did not err in granting summary judgment to Chevaldina
because her use of the Photo in each blog post constituted fair use. 3 We discuss
each factor in turn.
3
Katz argues the district court erred by failing to perform a “work-by-work” analysis of
the blog posts, see Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1259 (11th Cir. 2014), and
instead analyzed only the blog posts containing altered versions of the Photo. This argument
lacks merit. In the R&R adopted by the district court, the magistrate judge outlined all 25
allegedly infringing blog posts, and noted that its finding of fair use applied to each post.
Therefore, the district court did, in fact, perform the required “work-by-work” analysis. The
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A. Purpose and Character of the Work
The first factor—the purpose and character of the allegedly infringing
work—requires consideration of “(1) whether the use serves a nonprofit
educational purpose, as opposed to a commercial purpose; and (2) the degree to
which the work is a transformative use, as opposed to a merely superseding use, of
the copyrighted work.” Peter Letterese & Assocs., Inc. v. World Inst. of
Scientology Enters., 533 F.3d 1287, 1309 (11th Cir. 2008) (quotation omitted).
The district court did not err in concluding Chevaldina’s use of the work was both
noncommercial and transformative.
Every use of the Photo on the blog was of a primarily educational, rather
than commercial, character. Chevaldina unabashedly criticized and commented on
the dealings of Katz, his businesses, and his lawyers. Chevaldina’s blog posts
sought to warn and educate others about the alleged nefariousness of Katz, and she
made no money from her use of the photo. See 17 U.S.C. § 107 (designating
“criticism” and “comment” as fair use).
Katz argues the Photo served a primarily commercial purpose because, in a
March 4, 2012, blog post, Chevaldina said she was “in the process of writing a
book ‘Why RK Centers Was The Wrong Choice.’” Thus, Katz argues, Chevaldina
district court was not required to write a prolix, unwieldy opinion with 25 separate sections
devoted to each alleged instance of infringement.
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used the Photo to advertise for commercial book sales. Chevaldina’s reference to
her intention to write a book about her experiences with Katz does not alone,
however, transform the blog post into a commercial venture. Overall, the blog post
retains her educational purpose of lambasting Katz and deterring others from
conducting business with him. See March 4, 2012 Blog Post (“I hope my book
will help ambitious people in their dream to be successful without selling the[ir]
soul to the [d]evil.”). Moreover, the link between Chevaldina’s commercial gain
and her copying of the Photo was attenuated given that Chevaldina never wrote a
book nor made any profits whatsoever. See Swatch Grp. Mgmt. Servs. Ltd. v.
Bloomberg L.P., 756 F.3d 73, 83 (2d Cir. 2014) (discounting commercial nature of
use where “the link between the defendant’s commercial gain and its copying is
attenuated such that it would be misleading to characterize the use as commercial
exploitation” (quotations and alterations omitted)).
Chevaldina’s use of the Photo was also transformative. A use is
transformative when it “adds something new, with a further purpose or different
character, altering the first with new expression, meaning, or message.” See
Campbell, 510 U.S. at 579, 114 S. Ct. at 1171. Chevaldina’s use of the Photo was
transformative because, in the context of the blog post’s surrounding commentary,
she used Katz’s purportedly “ugly” and “compromising” appearance to ridicule
and satirize his character. See Swatch, 756 F.3d at 84 (“Courts often find such uses
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[of faithfully reproduced works] transformative by emphasizing the altered purpose
or context of the work, as evidenced by the surrounding commentary or
criticism.”); A.V. ex el Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir.
2009) (“The use of a copyrighted work need not alter or augment the work to be
transformative in nature.”); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,
1270 (11th Cir. 2001) (finding transformative use where work was “principally and
purposefully a critical statement”).
Chevaldina’s use of the Photo was noncommercial and transformative.
Accordingly, the first factor weighs in favor of fair use.
B. Nature of the Copyrighted Work
The second fair use factor—the nature of the copyrighted work—
“recognizes that there is a hierarchy of copyright protection in which original,
creative works are afforded greater protections than derivative works or factual
compilations.” Suntrust, 268 F.3d at 1271. In evaluating this factor, courts
consider (1) whether the work was previously published and (2) whether the work
is primarily creative or factual. See Harper & Row Publishers, Inc. v. Nation
Enters., 471 U.S. 539, 563–64, 105 S. Ct. 2218, 2232 (1985).
There is no dispute that the Photo was published prior to Chevaldina’s use.
As such, the time of publication weighs in favor of fair use. See Kelly v. Arriba
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Soft Corp., 336 F.3d 811, 820 (9th Cir. 2003) (holding publication of images on
internet before defendant’s copying favored fair use).
The district court did not err in finding the Photo was primarily a factual
work. “The law generally recognizes a greater need to disseminate factual works
than works of fiction or fantasy.” Harper & Row, 471 U.S. at 563, 105 S. Ct. at
2232. Photography is an art form that may require the photographer to make many
important creative decisions. See Leibovitz v. Paramount Pictures Corp., 137 F.3d
109, 116 (2d Cir. 1998) (stating a photographer “is entitled to protection for such
artistic elements as the particular lighting, the resulting skin tone on the subject,
and the camera angle that she selected”). The Photo, however, is merely a candid
shot in a public setting, and there is no evidence in the record that Magriso, the
photographer, attempted to convey ideas, emotions, or in any way influence Katz’s
pose, expression, or clothing. See Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d
177, 188 (D. Mass. 2007) (concluding candid photograph of mobster leaving
police station was a primarily factual work). While Magriso’s photojournalistic
timing was fortuitous (at least from Chevaldina’s perspective), this alone was not
enough to make the creative gilt of the Photo predominate over its plainly factual
elements.
The Photo was previously published and primarily factual. The second
factor therefore weighs in favor of fair use.
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C. Amount of the Work Used
The third factor is “the amount and substantiality of the portion used in
relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). A court must
ask whether the defendant has “helped [herself] overmuch to the copyrighted work
in light of the purpose and character of the use.” Peter Letterese & Assocs., 533
F.3d at 1314 (quotation omitted). This factor “weighs less when considering a
photograph—where all or most of the work often must be used in order to preserve
any meaning at all—than a work such as a text or musical composition, where bits
and pieces can be excerpted without losing all value.” Fitzgerald, 491 F. Supp. 2d
at 188; see Seltzer v. Green Day, Inc., 725 F.3d 1170, 1178 (9th Cir. 2013)
(“[U]nlike an episode of the Ed Sullivan show or a book manuscript, [a drawing] is
not meaningfully divisible.”).
The district court did not err in finding the third factor was neutral as applied
to the blog posts incorporating the Photo. Though ten blog posts reproduced the
Photo in its entirety and without alteration, to copy any less of the image “would
have made the picture useless to [Chevaldina’s] story” that Katz is a predatory
commercial landlord. See Núñez v. Caribbean Int’l News Corp., 235 F.3d 18, 24
(1st Cir. 2000). As such, the third factor neither weighs for nor against a finding of
fair use.
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D. Effect of the Use on the Potential Market for the Work
The fourth factor is “the effect of the use upon the potential market for or
value of the copyrighted work.” 17 U.S.C. 107(4). The “central question” is
whether, assuming that everyone engaged in the conduct of the defendant, the use
“would cause substantial economic harm such that allowing [the conduct] would
frustrate the purposes of copyright by materially impairing [the defendant’s]
incentive to publish the work.” Cambridge Univ. Press v. Patton, 769 F.3d 1232,
1276 (11th Cir. 2014).
The district court did not err in finding Chevaldina’s use of the Photo would
not materially impair Katz’s incentive to publish the work. Katz took the highly
unusual step of obtaining the copyright to the Photo and initiating this lawsuit
specifically to prevent its publication. Katz profoundly distastes the Photo and
seeks to extinguish, for all time, the dissemination of his “embarrassing”
countenance. Due to Katz’s attempt to utilize copyright as an instrument of
censorship against unwanted criticism, there is no potential market for his work.
While we recognize that even an author who disavows any intention to publish his
work “has the right to change his mind,” see Monge v. Maya Magazines, Inc., 688
F.3d 1164, 1181 (9th Cir. 2012) (quotation omitted), the likelihood of Katz
changing his mind about the Photo is, based on the undisputed evidence in the
record, incredibly remote. Since there is no evidence Chevaldina’s use of the
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Photo had or would have any impact upon any actual or potential market, the
fourth factor weighs in favor of fair use.
IV. CONCLUSION
Three factors in our fair use inquiry—the purpose and character of the work,
the nature of the work, and the effect of the use on the potential market—weigh in
favor of Chevaldina. The amount and substantiality of the work is neutral. After
weighing all four factors, our analysis tilts strongly in favor of fair use. The
district court did not err in granting summary judgment to Chevaldina because
every reasonable factfinder would conclude the inclusion of the Photo in her blog
posts constituted fair use.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to Chevaldina. 4
AFFIRMED.
4
We also deny Katz’s motion to strike Chevaldina’s supplemental authorities.
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