Blogger Made Fair Use of ‘Ugly’ Photo of Tycoon
(September 21, 2015) The copyright holder of an unflattering and embarrassing candid photograph cannot stop the use of his image in several scathing blog posts because it is a fair use.
Raanan Katz is a minority investor in the Miami Heat basketball team and a commercial real estate tycoon who owns and operates shopping centers known as RK Centers. While he was in Jerusalem, a professional photographer took a candid picture of him at basketball practice showing his eyebrows arched upwards and his tongue sticking out of his mouth. Katz claims the photo is “ugly.”
A disgruntled former tenant of one of Katz’s shopping centers created a blog devoted to sharply criticizing Katz and his business practices. She published 25 blog posts criticizing Katz in part by using the photo.
Katz acquired the copyright in the photo and sued the blogger for copyright infringement. The court granted the defendant’s motion for summary judgment, finding it was fair use.
The 11th Circuit Court of Appeals agreed that the blogger’s use was both noncommercial and transformative. “Chevaldina’s blog posts sought to warn and educate others about the alleged nefariousness of Katz, and she made no money from her use of the photo,” the appellate court said. The use “was transformative because, in the context of the blog post’s surrounding commentary, she used Katz’s purportedly ‘ugly’ and ‘compromising’ appearance to ridicule and satirize his character.”
While a photograph may be entitled to copyright protection, the appellate court said this photograph “is merely a candid shot in a public setting, and there is no evidence in the record that Magriso, the photographer, attempted to convey ideas, emotions, or in any way influence Katz’s pose, expression, or clothing.”
Moreover, the opinion said, the use of the photo on the blog post did not diminish the value of the work. “Katz took the highly unusual step of obtaining the copyright to the Photo and initiating this lawsuit specifically to prevent its publication. Katz profoundly distastes the Photo and seeks to extinguish, for all time, the dissemination of his ‘embarrassing’ countenance. Due to Katz’s attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work.”
The opinion did not include a copy of the picture.
Katz v. Chevaldina, 11th Cir. No. 14-14525, issued September 17, 2015.