Hunley v. Buzzfeed, Inc.

Background

Alexis Hunley, Vanessa Charlot, Dee Dwyer, Karisha “Kay” Hickman, Anthony “Tony” Mobley, and Montinique Monroe sued BuzzFeed, Inc. for alleged copyright infringement under the Copyright Act. The plaintiffs alleged that, after the May and June 2020 protests following George Floyd’s death, each took photographs of the protests, registered the photographs with the United States Copyright Office, and posted them on Instagram.

The plaintiffs alleged that BuzzFeed embedded and displayed at least one photograph from each plaintiff’s Instagram account in a BuzzFeed News article titled “17 Powerful Pictures of the Protests Through the Eyes of Black Photographers.” They alleged that BuzzFeed did not obtain a license from the plaintiffs or Instagram and that BuzzFeed created the article to generate profits and deprive them of licensing opportunities. The plaintiffs sought statutory damages or, alternatively, actual damages based on BuzzFeed’s earnings from the alleged infringement.

BuzzFeed moved to dismiss the amended complaint. Alternatively, it asked the court to sever the plaintiffs’ claims and strike allegations from the complaint.

Fair Use

Fair use is a defense that can permit use of copyrighted material without the copyright holder’s permission in certain circumstances. The Copyright Act identifies four factors: the purpose and character of the use, including whether it was commercial; the nature of the copyrighted work; the amount used; and the effect on the potential market or value of the work. BuzzFeed had the burden of establishing this defense.

BuzzFeed argued that its use of the photographs was transformative, meaning that it added a new purpose, meaning, or message. The court rejected that argument at the motion-to-dismiss stage. Accepting the complaint’s allegations as true and drawing reasonable inferences for the plaintiffs, the court found that BuzzFeed had not altered the photographs or added new expression, meaning, or message. The article primarily collected photographs and identified the photographers.

The court also noted that BuzzFeed did not address the other three fair-use factors in either its opening brief or reply. Because all four factors must be considered together, the court concluded that BuzzFeed had failed to state a fair-use defense. The court also rejected BuzzFeed’s additional arguments that embedded photographs could not be the subject of infringement claims and that the plaintiffs granted BuzzFeed a license by placing the photographs on public Instagram accounts. The court stated that those arguments either raised factual disputes unsuitable for resolution at this stage or did not clearly address the statutory fair-use factors.

Joinder and Severance

The court denied BuzzFeed’s request to sever the plaintiffs. Under the applicable joinder rule, plaintiffs may proceed together when their claims arise from the same transaction, occurrence, or series of occurrences and share a common question of law or fact.

The court found that the plaintiffs’ claims were logically related because they involved the same BuzzFeed News article, the same defendant, photographs allegedly displayed on the same day, and similar copyright allegations. The court also found common questions of law and fact. Although a court may sever claims even when joinder is proper, severance is an exceptional procedural measure, and the court found no compelling reason to use it here. It specifically cited the early stage of the litigation, judicial efficiency, and the possibility of streamlining discovery and settlement.

Motion to Strike

The court also denied BuzzFeed’s motion to strike allegations. A motion to strike asks a court to remove redundant, immaterial, impertinent, or scandalous material from a pleading. The court explained that such motions are generally disfavored and that allegations should not be removed unless there is a strong reason to do so.

The court found that it was too early to determine whether the disputed allegations would be admissible at trial or have no bearing on the case. It also stated that some allegations appeared to provide background information that helped explain the plaintiffs’ claims. The court was not convinced that leaving the allegations in the complaint would prejudice BuzzFeed.

Disposition

The court denied BuzzFeed’s motion to dismiss the amended complaint, denied its motion to sever the plaintiffs, and denied its motion to strike allegations. The conclusion states that BuzzFeed’s combined motion was denied in its entirety. Judge Andrew L. Carter, Jr. also encouraged the parties to discuss settlement.