The U.S. District Court for the Northern District of California held that the fair use doctrine barred copyright claims by a politician and lawyer against the operators of a website that reproduced her photo without her permission. Dhillon v. Does 1-10, No. C 13-01465 (N.D. Cal. Feb. 25, 2014).
PLAINTIFF’S PHOTOGRAPH. In 2008, Harmeet Dhillon, an attorney who currently serves as Chairman of the Republican Party chapter of San Francisco, California, was a candidate for a seat in the California state legislative assembly. In the course of her campaign, she commissioned photographs of herself, including a headshot set against a gray background. She used the headshot in the campaign and in subsequent publicity activities.
UNAUTHORIZED USE OF PLAINTIFF’S PHOTOGRAPH. On February 12, 2013, the website MungerGames.net published an anonymous article about the Ms. Dhillon entitled “Meet Harmeet.” Alongside the article appeared an unauthorized copy of Ms. Dhillon’s headshot photo. Ms. Dhillon registered the copyright in the photograph and filed a copyright infringement lawsuit against the operator(s) of MungerGames.net. The defendants moved for summary judgment, contending that the copyright claim was barred by the doctrine of fair use. In a decision dated February 25, 2014, the court granted the defendants’ motion and dismissed the claim.
THE FAIR USE DEFENSE. Fair use is an exception to the exclusive protection of copyright under U.S. law. It permits certain limited uses of copyrighted works without the permission of the author or owner of the copyright. Section 107 of the U.S. Copyright Act contains a list of the various purposes for which the reproduction of a particular work may be considered fair. Those purposes include criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also identifies the following four non-exclusive factors to be considered by courts in determining whether a particular use is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for, or value of, the copyrighted work.
THE COURT’S REASONING. In concluding that the defendants’ unauthorized use was shielded by the fair use defense, the court took into consideration the following evidence:
- The website on which the photo was reproduced was a non-commercial website, and there was no evidence that the defendants obtained any financial benefit as a result of using the photo.
- The defendants’ use of the photo was “transformative,” because, although the plaintiff had commissioned the creation of the photo to promote her political candidacy, the defendants had used the photo in connection with an article that was critical of the plaintiff’s political positions.
- It would not have been feasible for the defendants to have used less than the entire photo.
- There was no evidence or allegation “that any market ever existed for the sale or licensing of the headshot photo, or that such a market might have developed at any future time.” Therefore, there was no evidence of “any impact upon the economic market for the headshot photo,” as required under the fourth fair use factor.
In light of these facts, the court determined that the fair use factors weighed in favor of the defendants, and that the plaintiff’s claim should be dismissed. The court did not, however, grant the defendants’ motion for sanctions because the court determined that the plaintiff’s position “was not completely unreasonable.”