Schwartzwald v. Oath Inc.

Background

Lawrence Schwartzwald, a New York-based professional photographer, sued Oath Inc., which owns and operates HuffPost. He alleged that Oath infringed his copyright in a photograph of actor Jon Hamm walking down a street. Schwartzwald alleged that he licensed the photograph to media outlets but that Oath reproduced it without his authorization or payment of a licensing fee.

Oath included a cropped version of the photograph in a HuffPost article titled “25 Things You Wish You Hadn’t Learned in 2013 And Must Forget in 2014.” The article item discussed attention surrounding Hamm’s private parts. Oath cropped out approximately half of the photograph, including Hamm’s companion, and placed a black box reading “Image Loading” over Hamm’s groin area.

Oath moved to dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Oath argued that its use of the photograph was protected by the copyright-law doctrine of fair use.

Fair Use Analysis

The court explained that fair use permits some unauthorized uses of copyrighted works, including uses for criticism, comment, and news reporting. It considered 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 potential market.

Purpose and character. The court found Oath’s use transformative because the article used the photograph to mock both Hamm and the public fixation on photographs of him. The headline, caption, and “Image Loading” box gave the photograph a different purpose and message from Schwartzwald’s original. Cropping the photograph and obscuring the feature that allegedly made it noteworthy also supported this conclusion.

The court found that Oath used the photograph for commercial purposes because Oath was a for-profit company. That consideration weighed against fair use, but the court gave it little weight because Oath’s use was substantially transformative. The court also found no plausible allegation that Oath acted in bad faith merely because it did not seek permission.

Nature of the work. The court found that the photograph was more factual than creative. It characterized the image as a paparazzi-style photograph of a celebrity appearing naturally in public. The court also noted that the photograph had already been published, which favored fair use.

Amount used. The court found that this factor favored fair use. Oath used approximately half of the photograph, cropped out Hamm’s companion, and covered the portion that Schwartzwald alleged made the photograph distinctive. The court concluded that the amount used was reasonable for Oath’s purpose of commenting on the photograph’s notoriety.

Effect on the market. The court found that Oath’s use was unlikely to replace the original photograph in the market for media licenses. Because the “Image Loading” box obscured the photograph’s central feature, media outlets seeking to show what Hamm allegedly looked like without underwear would not likely choose Oath’s altered version instead of the original.

Ruling

After weighing all four factors together, the court held that Oath’s use of the photograph constituted fair use as a matter of law. The court therefore granted Oath’s motion to dismiss. Because Schwartzwald had already amended his complaint once and the opinion found no indication that additional allegations could produce a different result, Judge Ronnie Abrams dismissed the First Amended Complaint with prejudice and directed the Clerk of Court to close the case.