Partial Photograph in Screenshot to Illustrate Controversy Is A Fair Use

(November 14, 2019) A photographer cannot sue for copyright infringement when his image was partially used without permission in an online article that criticized a newspaper article using with permission the full image. The court found the subsequent partial use constituted was fair use.

Stephen Yang took a picture of Dan Rochkind or an article in the New York Post entitled “Why I don’t Date Hot Women Anymore,” in which Rochkind described his dating life. The next day in an article entitled “Twitter is skewering the New York Post for a piece on why a man won’t date hot women,” Mic Network, Inc. posted an article about the online response to the Post’s article. Mic’s article included a screenshot of the New York Post article containing a portion of Yang’s image.

Yang said Mic Network did not have a license to use his image and sued for copyright infringement. The trial court granted Mic Network’s motion to dismiss, finding the Mic’s posting was protected by fair use. In analyzing the use, the judge said it was transformative in three ways. First, the Mic article used the screenshot to identify the subject of controversy and to illustrate why the Post’s article was controversial. Second, the Mic article mocked the Post’s presentation, using the screenshot to identify the target of its criticism and as a basis for criticism. Third, the Mic article placed Rochkind in a harshly negative light while the original article was positive.

The court also found that Mic used a “significantly cropped” version of the photo, finding, “it is implausible that this was not a reasonable use of the Photograph to achieve the purpose of both identifying the object of the controversy and satirizing the Post Article and Rochkind.”

Finally, the court said the use of the screenshot did not decrease the potential market for Yang’s photograph because a potential purchaser of the image would want the entire photo rather than the screenshot.

Yang v. Mic Network, Inc., Dist. Ct. S.D.N.Y. No. 18 CV 7628.