Romanova v. Amilus Inc.

Background

Jana Romanova sued Amilus Inc. under Section 501 of the Copyright Act, alleging willful infringement of her copyright in a photograph showing a woman with pet snakes. Romanova alleged that she owned the copyright, had registered the photograph with the United States Copyright Office, and had originally licensed it for a National Geographic article about people in Russia who kept snakes as pets.

Romanova alleged that Amilus posted the photograph in an online article titled “Trending: Dogs, Cats . . . and Other Pets, to Start Off 2018.” The article collected ten photographs and discussed the increasing amount of pet photography circulating online. Amilus failed to appear or respond to the complaint. Romanova therefore sought a default judgment, which is a judgment requested because the opposing party did not participate in the case.

Why the Court Considered Fair Use

The court explained that a defendant’s failure to appear does not automatically entitle a plaintiff to a default judgment. The complaint must still state a valid claim for relief. The court accepted Romanova’s properly pleaded allegations as true, except those concerning damages, and considered the complaint and materials submitted in support of her motion.

The court assumed, without deciding, that Romanova owned the copyright and that Amilus’s use was unauthorized. It nevertheless concluded that Romanova could not state a claim if Amilus’s use qualified as fair use. Fair use is a statutory exception to copyright infringement. The court analyzed 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 market for the original.

Fair-Use Analysis

Purpose and character of the use. The court found Amilus’s use transformative, meaning that it gave the photograph a new purpose or meaning. Romanova’s photograph originally presented snakes as domesticated pets with their owner. Amilus used it as one of several examples illustrating the broader trend of online pet photography. The court concluded that this communicated something new and different from the photograph’s original purpose.

The court acknowledged that the website required a paid membership to view the photograph, which weighed against fair use. It gave that consideration less importance because of the transformative nature of the use. The court also found no bad faith. Romanova conceded that Amilus properly attributed the photograph to her and linked to the original National Geographic publication.

Nature of the copyrighted work. The photograph was creative and published, which could weigh against fair use. But the court gave this factor little weight because Amilus used the photograph for a transformative purpose.

Amount and substantiality of the use. Amilus displayed the entire photograph. The court concluded that using the full image was reasonable for the transformative purpose of showing an example of pet photography. This factor was neutral.

Effect on the market. The court found that Amilus’s use was unlikely to replace the original photograph or harm the markets for which the photograph was originally intended. The court rejected Romanova’s argument that the use harmed a traditional market for visual and illustrative art, explaining that Amilus’s use belonged to a different, transformative market. The court also found that Romanova offered only conclusory and speculative assertions about lost licensing revenue. This factor favored fair use.

Disposition

The court concluded that the balance of the fair-use factors favored Amilus. The first factor weighed heavily toward fair use and influenced the court’s treatment of the other factors. The court therefore concluded that Amilus’s use of the photograph was fair use, dismissed Romanova’s complaint with prejudice, and directed the Clerk of Court to close the case. Judge Valerie Caproni entered the order on April 24, 2023.