Walsh v. Townsquare Media, Inc.

Background

Rebecca Fay Walsh alleged that Townsquare Media, Inc. infringed her registered copyright in a photograph she took of Cardi B at a Tom Ford fashion show. Walsh made photographs of Cardi B available for licensing through Getty Images. Townsquare operated XXL Mag, an online website that published an article about Cardi B’s Tom Ford lipstick collaboration, social-media discussions, and a related rumored fight.

The article embedded three Instagram posts. One post by Cardi B contained a composite image showing a Tom Ford lipstick, Walsh’s photograph, and a headline stating that Cardi B’s Tom Ford lipstick had sold out. The article did not discuss Walsh’s photograph itself. After Walsh filed the lawsuit, Townsquare removed the post from the article.

Walsh asserted copyright infringement based on Townsquare’s unlicensed publication of the photograph. Townsquare moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). That motion asks the court to rule based on the pleadings and incorporated materials when no material factual issue remains and the moving party is entitled to judgment as a matter of law.

Fair-Use Analysis

The Copyright Act gives copyright owners exclusive rights to reproduce, distribute, and prepare derivative works, but it also recognizes fair use. Fair use is an affirmative defense, meaning the accused party bears the burden of establishing it. The court analyzed the four statutory factors.

Purpose and character of the use. The court found this factor strongly favored fair use. Walsh’s photograph was created to depict Cardi B at the fashion show. Townsquare did not use it as a generic image of Cardi B or as an image accompanying an article about the fashion show. Instead, Townsquare embedded the entire Instagram post because Cardi B’s creation and dissemination of that post were themselves the subject of the article. The court considered that use transformative because the photograph served a different function in the article: it appeared as part of the reported social-media post, along with the post’s other image, headline, caption, and Instagram features. The court also concluded that Townsquare’s commercial status did not outweigh the transformative nature of the use.

Nature of the copyrighted work. The photograph had both factual and creative elements. It documented a celebrity but also reflected technical skill and aesthetic judgment. The court considered this factor relatively neutral because of those mixed qualities, but found that the photograph’s prior publication on Instagram caused the factor to weigh slightly in Townsquare’s favor.

Amount used. Townsquare displayed an uncropped but resized version of the photograph as part of the Instagram post. The court found that the complete post was the only image that could accomplish the article’s purpose of showing the relevant social-media story. Because the photograph was already part of Cardi B’s post, Townsquare used no more of it than necessary for that purpose. This factor therefore favored fair use.

Effect on the market. The court found that Townsquare’s use was unlikely to compete with Walsh’s business or affect the value of her photograph. The photograph did not appear alone; it appeared within a post containing text and another image. The court concluded that someone seeking to license or purchase a Cardi B photograph was unlikely to choose the Instagram post instead of Walsh’s original photograph. This factor also favored fair use.

Ruling

Considering the factors together, the court held that Townsquare’s use of the photograph was fair as a matter of law. The court did not decide the unresolved legal question of whether embedding an image hosted elsewhere always constitutes a display under the Copyright Act because Townsquare did not raise that issue.

Judge Vernon S. Broderick granted Townsquare’s motion for judgment on the pleadings. The court dismissed the action with prejudice, directed the Clerk of Court to enter judgment and close the case, and terminated the motion.