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Print Page Fair Use of Center Owner’s Photo
by Ron Davis

A wealthy owner of shopping centers has failed in his efforts to block an unflattering photo of him from being widely published by a distraught blogger.

The subject of the photo is an international businessman, and he objects to the candid photo because he was unaware that the camera was aimed at him, and the shot shows him standing at courtside of a basketball game while in an embarrassing pose. At that moment, his eyebrows were arched sharply upwards and his tongue was sticking from his mouth.

The photo had come to the attention of a disgruntled former tenant of one of the subject’s shopping centers. After spotting the photo online, she created a blog that castigated him and his business tactics. In all, she published 25 blog posts that not only reproduced the unbecoming photo, but also showed captions that were critical of the subject’s practices.

Moreover, she went so far as to allege that “he ripped off young American Jewish single mothers of special-needs children” And in another post, she cropped a facial photo shot that showed his face superimposed against a cartoon dunce hat.

The center’s owner responded by suing the blogger, and she then submitted an online reply, claiming “a right to judgment.”

And a magistrate court recommended judgment in favor of the blogger on grounds that her publishing efforts with regard to the photo constitute “fair use.” A district court agreed, also granting judgment in favor of the blogger.

The dispute then boiled over, with both sides claiming a potential right to judgment. The United State Court of Appeals, Eleventh Circuit, finally settled the impasse, pointing out that the only issue is whether the use of the blog posts constitutes fairness under the law. To reach a finding in such a case requires the following:

- “Whether a defendant’s use of a work constitutes fair use…for purposes such as criticism, comment, news reporting, teaching…scholarship, or research, and is not an infringement of copyright.”

- “Whether a defendant’s use of a work does in fact constitute fair use, the courts must then weigh the following factors: (1) the purpose and character of the alleged infringing; (2) the nature of the copyright work; (3) the amount of copyright work used; (4) the effect of the use on the potential market or value of the copyright. These four factors must not be treated in isolation from one another.”

“Based on our weighing of the factors, the district court did not err in granting judgment,” the court ruled, “because [the defendant’s] use of the photo in each blog post constitutes fair use….After weighing all four factors, our analysis tilts strongly in favor of granting judgment…because every reasonable factfinder would conclude….her blog posts constitute fair use.”

(Katz vs Google Inc., ---F.3d---2015 WL 5449883, 25 Fla.L. Weakly Fed. Fed.C 1632)

Decision: September 2015
Published: October 2015

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