Sands v. What's Trending, Inc.

Background

Steve Sands brought a copyright-infringement action under Section 501 of the Copyright Act against What's Trending, Inc. The dispute concerns a photograph Sands took of actor Joaquin Phoenix while Phoenix was on the set of the film “Joker.” Sands alleged that What's Trending published an article that prominently featured the photograph without a license, permission, or consent.

What's Trending moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. It argued that reproducing the photograph was fair use. Magistrate Judge Katharine H. Parker recommended denying the motion. No objections were filed, so the district court reviewed the report and recommendation for clear error.

Fair-use analysis

The court explained that fair use is an affirmative defense and may be resolved on a motion to dismiss when the facts establishing the defense are apparent from the complaint and the works at issue. The court considered the four statutory factors.

Purpose and character of the use. The court agreed that the article did not criticize the photograph or portray Phoenix or the film in a different light. Instead, the photograph served the same general purpose as Sands’s alleged original purpose: giving viewers a preview of Phoenix’s character or the film’s plot. The use was therefore not transformative. The court also agreed that Sands plausibly alleged that What's Trending, described as a for-profit entity, used the photograph commercially to attract readers. The court found no plausible allegation of bad faith, explaining that using the photograph without permission alone was insufficient to establish bad faith in this context. Overall, this factor weighed against dismissal.

Nature of the copyrighted work. The court found that this factor was neutral or weighed slightly against fair use. Sands alleged that the photograph was creative based on choices involving perspective, camera angle, lighting, timing, lens, and filters. The court also noted that the record did not establish whether the photograph had been published when What's Trending allegedly used it.

Amount and substantiality of the use. What's Trending reproduced the photograph in its entirety. Although Sands’s copyright registration covered 672 photographs, the court rejected the argument that the photographs collectively constituted a single work for fair-use purposes. This factor weighed against fair use.

Effect on the market. Because the use was nontransformative, commercial, and involved duplicating the entire photograph, the court applied a presumption of market harm. Sands also plausibly alleged that he licenses photographs to online media platforms and that there was demand for this photograph because of the publicity surrounding “Joker.” The court agreed that publishing the photograph without paying a license fee could deprive Sands of revenue and that treating the use as fair could harm the freelance photography market. This factor weighed against fair use.

Ruling

The court held that at least three of the four fair-use factors weighed against What's Trending’s argument and that Sands’s complaint should not be dismissed on that basis. Judge George B. Daniels adopted Magistrate Judge Parker’s report and recommendation in full and denied What's Trending’s motions to dismiss the complaint for failure to state a claim, identified as ECF Nos. 16 and 20. An earlier footnote states that the first motion was denied as moot after Sands filed an amended complaint, creating a wording inconsistency with the conclusion’s statement that both motions were denied. The clerk was directed to close the motions.