Whiddon v. Buzzfeed, Inc.

Background

Lindsay Grace Whiddon brought one copyright-infringement claim against Buzzfeed, Inc., based on Buzzfeed’s use of three of her photographs in a news article about a social-media controversy involving Whiddon’s friend. Buzzfeed moved to dismiss, arguing that its use was protected by fair use, a copyright-law doctrine that can permit certain unauthorized uses.

On October 31, 2022, the court granted Buzzfeed’s motion and dismissed the amended complaint with prejudice. The court found that three of the four fair-use factors favored Buzzfeed: the use was transformative because the photographs were used to report on the online controversy; reproducing the photographs in full was reasonable for that reporting; and the use did not compete with the photographs in a traditional market. The court gave less weight to the fact that the photographs were creative. The Clerk then entered judgment for Buzzfeed.

Whiddon had asked for leave to file a second amended complaint in her opposition brief, but she did not identify proposed new facts or legal theories, specify how an amendment would cure the pleading’s problems, or attach a proposed complaint. After judgment was entered, she moved for reconsideration under Local Civil Rule 6.3 and Federal Rule of Civil Procedure 60(b), asked the court to vacate the dismissal order and judgment, and sought permission to amend.

Proposed Amendments

Whiddon proposed adding allegations that other media outlets reported on the controversy using fewer or none of the three photographs. She argued that these allegations would show Buzzfeed used more photographs than necessary and would change the analysis of whether its use was transformative and whether the amount copied was reasonable.

She also proposed alleging that she would have licensed the photographs to Buzzfeed and other media outlets if they had asked. She argued that this would support an adverse effect on the potential market for the photographs, which relates to the fourth fair-use factor.

Court’s Analysis

The court held that reconsideration was not appropriate because Whiddon identified no overlooked law, evidence, or controlling information. The court said she was attempting to relitigate issues already decided. It also held that, after judgment, Whiddon first needed relief from the judgment before she could amend her complaint, so the motion had to be considered under Rule 60(b), which provides limited grounds for reopening a judgment.

The court concluded that neither proposed amendment would change the result. The number of photographs used by other media outlets did not undermine the court’s prior finding that Buzzfeed’s use was transformative or that reproducing all three photographs was reasonable for its reporting. The court also stated that Whiddon’s alleged intent to license the photographs would not establish a relevant market, because lost licensing revenue must involve a traditional, reasonable, or likely-to-develop market. The court had previously found it implausible that Buzzfeed’s screenshots, which also displayed accompanying social-media text and information, competed with Whiddon’s photographs in the marketplace.

Because the proposed amended complaint still would not survive a motion to dismiss for failure to state a claim, the court found amendment futile. It therefore stated that Whiddon’s motions for reconsideration, to vacate the dismissal order, to vacate the judgment, and for leave to file a second amended complaint were denied with prejudice. The conclusion states that all four motions were “DENIED,” and the Clerk was directed to close the motion.

Disposition

The court denied Whiddon’s motions for reconsideration, to vacate the order granting Buzzfeed’s dismissal motion, to vacate the final judgment, and for leave to file a second amended complaint. The earlier dismissal with prejudice and judgment for Buzzfeed remained in effect.