The U.S. District Court for the Southern District of New York recently evaluated whether non-licensed images posted to a celebrity gossip news site constitute fair use. Unwilling to immediately make a final decision on the issue, the court granted the defendant-gossip site’s motion to dismiss with respect to one image, and denied the motion regarding three remaining images. See BWP Media USA, Inc. v. Gossip Cop Media, LLC, 2015 U.S. Dist. LEXIS 8811 (S.D.N.Y. Jan. 26, 2015).

Photojournalism-provider BWP Media USA Inc. (“BWP”) alleged Gossip Cop, a celebrity gossip news site, posted three of its photos and one video to the website without permission. Gossip Cop responded that because it provides media commentary as a “business,” its use of the photos constituted fair use. The photos at issue involved actors Mila Kunis and Aston Kuther walking down the street holding coffee and a newspaper between them; actor Robert Pattinson behind the wheel of a car; and model and actress Liberty Ross walking. The video showed actress Gwyneth Paltrow and Chris Martin on separate Vespa scooters with their children in tow. Each photo posting included attribution to the original story featuring the images, and their corresponding headlines. The posting also assigned a number from zero to ten, on a scale rating whether the story was a “rumor” or “real.” The Ross image did not include attribution. The video featuring Paltrow also made no mention of other news organizations and did not feature the rumor scale. Unlike the three images which had been successfully registered with the Copyright Office, the registration of the Paltrow video remained pending as of the time of the opinion. After analyzing the four, nonexclusive factors used to determine whether a given use is fair, the court granted the defendant’s motion to dismiss with respect to the Paltrow video, and denied the motion with respect to the remaining three images.

Because copyright registration serves as a prerequisite to bringing an infringement claim in federal court, and the Paltrow video registration remains pending, the SDNY granted the defendant’s motion to dismiss for the video. A

With respect to the other four images, the court held the purpose and character of the use weighed in the defendant’s favor with respect to the Kunis/Kutcher, and Pattinson images, and in the plaintiff’s favor with respect to the Ross image. The defendant’s use of the Kunis/Kutcher and Pattinson works was commercial in nature, yet the images commented on the factual basis of the original stories, thus illustrating its transformative nature. The Ross image however offered no criticism of an original, underlying source, thus illustrating no transformative use of the photo.

Because the photos qualified as somewhat creative, yet the images had been previously published, the court declined to award significant weight to the factor evaluating the nature of the copyrighted work.

Gossip Cop copied and displayed the images in their entirety, and as such, the court weighed the “amount and substantiality” factor in the plaintiff’s favor. Lastly, because Gossip Cop’s use of the photos may deprive the original publisher (and by extension BWP Media) of a portion of its market, the court found the factor examining the effect of the defendant’s use of the photos, weighed in favor of the plaintiff.

After deeming the defense of fair use inapplicable to most of the images, the SDNY will next be tasked with determining whether any other defenses apply, and , if not, the scope of damages.