Cobb v. American Urban Radio Networks LLC

Background

Bill Cobb, an aerial photographer, sued American Urban Radio Networks LLC (AURN) under the Copyright Act. Cobb alleged that AURN used his registered photograph, titled “chicago_253_ 81225,” on its website in connection with a news article about a proposal addressing income inequality in Evanston, Illinois. He alleged that AURN copied, distributed, and displayed the photograph without permission, including after he notified AURN of the alleged infringement.

Cobb’s amended complaint asserted one copyright-infringement claim. AURN moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. AURN primarily argued that its use of the photograph was protected by fair use.

Copyright-Infringement Claim

The court held that the amended complaint plausibly alleged direct copyright infringement. It identified the specific photograph at issue, alleged that Cobb owned the copyright, attached a copyright-registration certificate, and described the alleged infringing acts and relevant timing. The court also stated that the allegations plausibly supported an inference of willful infringement, although AURN’s arguments concerning the sufficiency of the infringement and willfulness allegations were raised for the first time in its reply brief.

Fair Use

Fair use is an affirmative defense under the Copyright Act, and the defendant bears the burden of proving it. The court explained that fair use generally depends on four factors: the purpose and character of the use; the nature of the copyrighted work; the amount used; and the effect on the potential market for the work.

The court found that the fair-use defense could not be resolved from the pleadings. For the first factor, the court concluded that the photograph appeared to be used as an illustrative aid for AURN’s article rather than to add commentary or criticism, making the use plausibly nontransformative. The court also credited Cobb’s allegation that AURN’s use generated commercial revenue and found that the allegations plausibly supported bad faith at this stage.

The second factor was neutral. The photograph was plausibly creative because of Cobb’s choices involving perspective, orientation, positioning, lighting, and other details, but the complaint also alleged that the work had been published. The third factor was likewise neutral: AURN reproduced the entire photograph, but using less of a photograph might not have preserved its meaning. The fourth factor favored Cobb because the photograph was available for commercial licensing, AURN allegedly used it in a way similar to a customer’s licensed use, and the court found potential market substitution plausible.

Disposition

Judge Engelmayer denied AURN’s motion to dismiss. The court stated that the fair-use defense was not evident from the face of the complaint and that AURN could litigate the issue anew on summary judgment. The court directed the clerk to terminate the motion and stated that an initial pretrial conference would be scheduled by separate order.