Photo Copyright Owner Loses Struggle Against Blogger Over Embarrassing Photo
If you have ever had an unappealing picture of yourself go viral, you may have some sympathy for Raanan Katz. The noted commercial real estate developer and minority investor in the Miami Heat franchise lost a battle against his former tenant, Irina Chevaldina, when the 11th Circuit ruled that Chevaldina’s use of an online photo of Katz constituted fair use.[1]
This particular strife started in 2011, when Katz was photographed while attending a basketball practice in Jerusalem. The candid headshot displays Katz with his tongue sticking out of his mouth—one he describes as “embarrassing” and “compromising.” The photo was published in Haaretz, an Israeli paper, alongside an article about Katz’s interest in buying an Israeli basketball team.[2]
Chevaldina, who had experienced displeasure with Katz as a tenant in one of his shopping centers, created a blog denouncing his business practices, even amidst other ongoing legal disputes the two had.[3] Chelvaldina found the photo that was published in Haaretz through a Google image search and republished it 25 times in her blog posts. She reproduced the photo in its original form, accompanied by “sharply worded captions” and cropped and pasted into cartoons. In a September 12, 2012 blog post, Chevaldina copied the picture with a caption that read, “HE RIPPED-OFF SPECIAL NEEDS LITTLE JEWISH GIRL.”[4]
Seeking to stop Chevaldina’s tactics, Katz bought the rights of the photo, and thereafter sued Chevaldina and Google Inc. for infringing his copyright. While the original complaint named Google Inc. as a contributory infringer, Katz later amended the complaint omitting Google Inc. as a defendant and sought an injunction only against Chevaldina. The district court granted summary judgment to Chevaldina, finding that she made “fair use” of the photo, and Katz appealed to the 11th Circuit.[5]
In deciding whether use of a work constitutes as fair use, courts weigh four factors: (1) the purpose and character of the defendant’s use; (2) the nature of the copyrighted work; (3) the amount of the original work used; (4) and the effect on the potential market for the value of the copyrighted work.[6]
The federal appellate court found that three of the factors weighed in favor of Chevaldina, and affirmed the district court’s grant of summary judgment. Regarding the first factor, the court found that Chevaldina’s use of the photo was educational and transformative. The court emphasized that Chevaldina warned and informed others about Katz’s practices and did not make any money from her use of the photo. The court also found her use of the photo transformative because she used Katz’s appearance to mock his character, which weighed in favor of fair use.[7] In light of the fact that the photo was a candid shot that was published prior to Chevaldina’s use of it, the court held that the nature of the photo was primarily factual, weighing in favor of fair use as well.[8]
Although Chevaldina used the entire photo each time she republished it, the court found the third factor to be neutral because using it in less than its original form would have rendered is “useless.”[9] Last, the court held that the last factor also weighed in favor of fair use due to the unlikelihood that it “materially impair[ed] Katz’s incentive to publish the work.” After all, Katz had purchased the copyright solely to prevent further publication.[10]
While this part of the war seems to be over, Katz is not ready to back down. In state court, he fared better by winning a judgment in a defamation case against Chevaldina, who appealed the ruling that is scheduled for a hearing on October 9.[11] Nevertheless, the 11th Circuit’s decision highlights an increasing trend—copyright owners attempting to misuse the system.[12] Although censoring criticism may seem appealing to a copyright owner, intellectual property law was not created for that purpose, and in light of this decision it appears we can be hopeful that money does not by everything.
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