August Image, LLC v. Girard Entertainment & Media, LLC

Background

Photographer Mark Seliger took a photograph of the cast of Friends in 1995, and the photograph later appeared on the cover of Rolling Stone. Seliger owns the copyright, and he authorized August Image, LLC to sue for infringement. Defendants Girard Entertainment & Media LLC and Keith Girard own and control a website.

David Schwimmer used the photograph in an Instagram post captioned “It’s happening.” Defendants used a screenshot of that post in an article about whether Friends could return and whether its cast had agreed to a special. The article stated that Schwimmer had confirmed in an Instagram post that the cast had agreed to a Friends special. August Image and Seliger sued for copyright infringement.

The court had referred the parties to mediation and ordered plaintiffs’ counsel to provide records about recent licenses of the photograph. After defendants reported that counsel had not complied, the court ordered counsel to explain why sanctions should not be imposed. Defendants later moved for judgment on the pleadings.

Judgment on the Pleadings and Fair Use

A motion for judgment on the pleadings under Rule 12(c) asks whether the pleadings show that a party is entitled to judgment without further factual development. The court applies the same standard used for a motion claiming that a complaint fails to state a legally sufficient claim. The court accepts the complaint’s factual allegations as true and draws reasonable inferences for the plaintiff.

The defendants argued that their use of the photograph was fair use. Fair use is a copyright-law exception that can permit uses such as criticism, comment, or news reporting. Courts consider four factors: the purpose and character of the use; the nature of the copyrighted work; the amount used; and the effect on the work’s market or value.

The court found that the first factor strongly favored fair use. The article used the photograph as part of the Instagram post being reported on. The court held that this was a transformative use because the article communicated something different from the photograph’s original purpose of depicting the Friends cast. Although the website might operate for commercial purposes, the court found that any commercial purpose was outweighed by the transformative nature of the use and the public benefit of reporting on the post.

The court found that the second factor weighed weakly against fair use because the photograph was a creative and published work, but it gave that factor limited weight because of the transformative purpose. The third factor was neutral: although defendants displayed the entire photograph, doing so was reasonable because the article was reporting on the Instagram post, which included the entire photograph. The fourth factor was also neutral because the photograph appeared as part of the post rather than as a standalone image, and plaintiffs did not plausibly allege that the use harmed the photograph’s market or value.

After weighing the factors, the court held that the balance required a finding of fair use. The court therefore granted the motion for judgment on the pleadings. It denied leave to amend because plaintiffs had not shown that they could plead facts establishing that the use was not fair use. The opinion’s conclusion states that the case was dismissed, without adding a separate prejudice designation.

Sanctions and Disposition

The court declined to sanction plaintiffs’ counsel, David Jenkins, Stephen M. Doniger, Scott Burroughs, or their firm, Doniger / Burroughs. The court found that the mediation-related order was clear and that counsel’s efforts to comply were inadequate, but accepted that a gap in the client’s records contributed to the failure. The court admonished counsel that it would not be as understanding in the future.

Judge Valerie Caproni granted the motion for judgment on the pleadings, dismissed the case, declined to sanction plaintiffs’ counsel, directed the clerk to terminate the open motions, and closed the case.