Whiddon v. Buzzfeed, Inc.

Background

Whiddon, a professional photographer, took photographs of her friend Tiffany Mitchell before and after Mitchell’s motorcycle accident. Mitchell posted the photographs on Instagram. Buzzfeed later published an article about the controversy surrounding that post and embedded screenshots of the Instagram post, including Whiddon’s photographs and Mitchell’s caption. The article discussed criticism that the photographs and accident appeared staged or glamorized and allegations that the post was connected to a SmartWater sponsorship.

Whiddon alleged that Buzzfeed reproduced three photographs without permission, violating Section 501 of the Copyright Act. The opinion states that Whiddon later withdrew the infringement claim concerning the photograph prominently featuring the SmartWater bottle. The amended complaint also alleged that Buzzfeed’s website and Facebook account were commercial enterprises and that publishing the photographs increased visits, advertising revenue, or merchandise sales.

Motion and standard

Buzzfeed moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that its use of the photographs was fair use. It alternatively sought summary judgment. The court considered the photographs, the alleged copies, the article, and the copyright registration because those materials were incorporated into or integral to the amended complaint.

Fair use is a copyright-law defense that permits certain unauthorized uses. The court 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 for the work. The court stated that fair use may be decided on a motion to dismiss when the necessary facts are evident from the complaint and the original and allegedly infringing works.

Court’s analysis

The court held that Buzzfeed’s use was transformative. In other words, Buzzfeed used the photographs for a different purpose from the purpose for which Whiddon took them. Buzzfeed used screenshots of the Instagram post to report on and explain the controversy over Mitchell’s decision to post the photographs. The screenshots showed the photographs together with Mitchell’s narrative and Instagram users’ comments, allowing readers to understand the criticism and form their own views.

The court rejected Whiddon’s argument that the pre-accident photograph was merely a generic image of Mitchell and that the post-accident photographs were unrelated to the controversy about sponsorship. It concluded that the pre-accident photograph helped readers assess whether the later photographs appeared to continue an earlier staged photoshoot. The post-accident photographs helped explain criticism that the post appeared staged or glamorized a motorcycle accident. The court also concluded that all three photographs were necessary to report the controversy accurately.

The court recognized that Buzzfeed was a commercial enterprise, which generally weighs against fair use, but found that the highly transformative use outweighed that consideration. The court found that the photographs were creative, which favored Whiddon, but gave that factor substantially less weight than the transformative purpose.

The court found that the amount used favored Buzzfeed because reproducing the complete photographs within screenshots was reasonable for the reporting purpose. Using less would have provided an incomplete or misleading account of the Instagram post and controversy. The court also found that Buzzfeed’s use did not compete with any market for Whiddon’s photographs. It reasoned that readers seeking photographs of the subject matter would not seek a license from Buzzfeed instead of Whiddon, and the complaint did not indicate that Whiddon intended to license the photographs for this type of media coverage.

Ruling

The court concluded that three fair-use factors favored Buzzfeed and that the one factor favoring Whiddon—the creative nature of the photographs—carried significantly less weight. It held that Buzzfeed’s use of the photographs constituted fair use and stated that the case must be dismissed. The court therefore granted Buzzfeed’s motion to dismiss. It did not need to decide whether Whiddon’s copyright was validly registered. The conclusion states that the motion was granted and does not expressly state whether the dismissal was with or without prejudice.