Yang v. Mic Network Inc.

Background

Stephen Yang, a professional photographer, sued Mic Network, Inc. for copyright infringement. Yang alleged that Mic Network used his photograph of Dan Rochkind without authorization. The photograph had been licensed to the New York Post, which used it in an article about Rochkind. Mic Network later published an article criticizing the New York Post article and included a screenshot showing the article’s headline, author, date, and roughly the top half of Yang’s photograph.

In September 2019, the court granted Mic Network’s motion to dismiss in full and dismissed Yang’s complaint with prejudice. The court concluded that Mic Network’s use was protected by fair use, a copyright doctrine that can protect certain unauthorized uses, because the use was transformative in several respects.

Motion for reconsideration

Yang moved for reconsideration of the earlier dismissal. Reconsideration is an extraordinary remedy generally limited to an intervening change in controlling law, newly available evidence, or a need to correct clear error or prevent serious unfairness.

The court rejected Yang’s three arguments:

- Yang argued that the photograph was separate from the New York Post article. The court said it had already recognized that Yang owned the photograph itself, but had still properly concluded that Mic Network used the screenshot to identify and criticize the New York Post article and its portrayal of Rochkind. - Yang argued that the New York Post article might itself be satirical rather than serious reporting. The court said he had not raised that argument earlier and that, even if considered, Mic Network’s use would still be transformative because its article criticized the Post article, Rochkind, and the way the image and text portrayed him. - Yang argued that widespread similar uses of the photograph showed a potential market for licensing fees. The court said it had already considered and rejected that argument, reasoning that Mic Network used the photograph only as part of a cropped, composite screenshot rather than as the original photograph.

The court therefore denied Yang’s motion for reconsideration. It also rejected Yang’s policy arguments about the possible effects of allowing composite screenshots, explaining that the earlier decision applied controlling precedent rather than deciding the dispute based on general policy concerns.

Mic Network’s request for attorney’s fees

Mic Network sought about $20,000 in attorney’s fees under the Copyright Act. The court explained that fee awards are discretionary and may depend on factors including whether the losing party’s position was frivolous or objectively unreasonable, whether the party had an improper motive, and whether fees would serve compensation or deterrence purposes.

The court denied the request. Although Yang’s claim had been dismissed, the court found that his lawsuit and arguments had a reasonable basis in law and fact. Yang had cited applicable precedent and made reasoned arguments, and some fair-use factors had favored his position even though they did not determine the outcome. The court also found no improper motive by Yang and no improper conduct by his counsel in this particular litigation. The court noted that counsel’s history in other cases supported a slight concern about overaggressive copyright claims, but it said the fee analysis had to focus on this case.

Sanctions

Mic Network also sought sanctions under a federal statute governing unreasonable and vexatious multiplication of proceedings and under the court’s inherent authority. The court said sanctions required evidence that the claims were entirely without a legal or factual basis and were brought in bad faith, or that the conduct was otherwise abusive.

The court found no evidence that Yang acted in bad faith. It determined that, although the complaint failed to state a claim, it was not so baseless as to constitute bad faith, and Yang consistently made reasonable arguments. The court therefore denied Mic Network’s motion for sanctions.

Disposition

The court denied Yang’s motion for reconsideration. It also denied Mic Network’s motion for attorney’s fees and sanctions. Finally, it denied Yang’s motion to strike Mic Network’s July 29, 2020 filing as moot.