Hames v. Media

Background

William Hames, a professional photographer, owns a photograph of musician George Lynch. Hames alleged that Townsquare Media, Inc., which operates the Loudwire website, used the photograph without permission in a thumbnail preview for a video from The Chuck Shute Podcast. The video was embedded in a Loudwire article about an interview concerning Lynch, Don Dokken, the band Dokken, and the band’s career and struggles. The thumbnail included a cropped version of Hames’s photograph, images of two other musicians, and text about the podcast.

Townsquare moved to dismiss the amended complaint under Rule 12(b)(6), arguing both that any copying was too minor to be legally actionable and that its use was protected by fair use. The court considered the photograph, thumbnail, article, video, and pleadings because those materials were attached to or incorporated into the amended complaint.

De Minimis Argument

The court rejected Townsquare’s argument that the alleged copying was de minimis, meaning so trivial that it falls below the amount needed for a copyright claim. Although the photograph appeared only as part of the video thumbnail and disappeared when playback began, the court concluded that it could remain visible before a user played the video. The court therefore did not find the alleged infringement inactionable on that ground.

Fair Use

Fair use is a complete defense to copyright infringement. The court evaluated the four statutory factors: the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the work’s potential market.

For the first factor, the court found that Townsquare’s use was transformative and strongly favored fair use. Townsquare did not select the photograph or create the podcast thumbnail. Instead, it embedded the video because the podcast itself was the subject of the article. The photograph appeared incidentally as part of that embedded video, rather than as a standalone image used to depict Lynch.

For the second factor, the court found that the photograph was a creative, published work. That factor favored Hames, but only with limited significance because Townsquare’s use was transformative and did not rely on the photograph’s creative elements as the principal subject.

For the third factor, the court found that the thumbnail reproduced the important portion of the photograph, including Lynch’s face, torso, and guitar. That portion was essentially the heart of the photograph. However, once Townsquare chose to embed the video, it used no more of the photograph than was already present in the thumbnail. The court also found that using the four-and-a-half-minute video segment, rather than the much longer full podcast or audio alone, was reasonable in light of the article’s subject. The third factor was therefore neutral.

For the fourth factor, the court found that Townsquare’s use was unlikely to compete with Hames’s photograph or divert revenue. The thumbnail also contained other musicians and podcast-related text, making it unlikely to serve as a substitute for someone seeking to license or purchase an image of Lynch. This factor favored fair use.

Considering the factors together, the court held that Townsquare established fair use on the face of the amended complaint and the incorporated materials. The court concluded that Townsquare’s use of the photograph was fair.

Leave to Amend and Disposition

Hames requested permission to amend the complaint again. The court denied that request because Hames identified no additional allegations or other basis that would make another complaint successful, and the court found that amendment would be futile.

The court granted Townsquare’s motion to dismiss, directed the Clerk of Court to enter judgment and terminate the motion, and closed the case.