advertisinglaw.fkks.com Open in urlscan Pro
18.200.59.252  Public Scan

Form analysis
1 forms found in the DOM

GET /

<form action="/" class="passle-search__form" id="passleSearchForm" method="get">
  <div class="passle-search__input">
    <div class="passle-search__input__icon">
      <i class="fas fa-search"></i>
    </div>
    <input aria-label="Type here to search for posts" autocomplete="off" class="passle-search__input__term" id="passleSearchTerm" name="searchText" placeholder="Search for posts" type="search" value="">
    <ul id="passleSearchSuggestions" class="passle-search__input__suggestions autosuggest"></ul>
  </div>
</form>

Text Content

https://advertisinglaw.fkks.com/post/102huw0/unauthorized-use-of-photos-to-illustrate-article-is-in-no-way-transformative-s?utm_source=Passle+Digest&utm_medium=Email&tceid=63a1ac6df636e918e0209ec0


FRANKFURT KURNIT KLEIN & SELZ

 * About Us
 * practice areas
 * Our Attorneys
 * Events & Education
 * News & Press
   
 * Careers

Advertising Law Updates
Subscribe
Passle Menu
 * Subscribe
 * Edit this post
 * All Posts
 * Contributors
 * Archive

CONTRIBUTORS

 * Ariel Radow
   
 * Bram Schumer
   
 * Brian Murphy
   Partner
 * Candice Kersh
   Advertising Lawyer
 * Caren Decter
   Partner
 * Christopher Chase
   Partner
 * Craig Whitney
   Partner
 * Daniel Goldberg
   Partner
 * Dorian Thomas
   Counsel
 * Frances Jensen
   
 * Greg Boyd
   Partner
 * Hannah Taylor
   Partner
 * J.J. Harwayne Leitner
   
 * Jeff Greenbaum
   Managing Partner
 * Jeffrey Marks
   Partner
 * Jeremy Goldman
   
 * Jordyn Milewski
   
 * Kate Patton
   
 * Kelly O'Donnell
   
 * Maria Nava
   
 * Matt Vittone
   Counsel
 * Rachel Santori
   Intellectual Property & Trademark Attorney
 * Rayna Lopyan
   Counsel
 * Rick Kurnit
   Retired Partner
 * Sean Kane
   Partner
 * Terri Seligman
   Partner
 * Tricia Legittino
   
 * Tyler Maulsby
   Partner
 * Wendy Schechter
   Counsel
 * Zach Lewis
   

ADVERTISING LAW UPDATES ARCHIVE

 * December 2022 (15)
 * November 2022 (18)
 * October 2022 (32)
 * September 2022 (29)
 * August 2022 (24)
 * July 2022 (14)
 * June 2022 (19)
 * May 2022 (37)
 * April 2022 (31)
 * March 2022 (33)
 * February 2022 (21)
 * January 2022 (35)
 * December 2021 (26)
 * November 2021 (26)
 * October 2021 (30)
 * September 2021 (30)
 * August 2021 (23)
 * July 2021 (32)
 * June 2021 (24)
 * May 2021 (21)
 * April 2021 (29)
 * March 2021 (35)
 * February 2021 (36)
 * January 2021 (28)
 * December 2020 (25)
 * November 2020 (22)
 * October 2020 (34)
 * September 2020 (28)
 * August 2020 (37)
 * July 2020 (47)
 * June 2020 (44)
 * May 2020 (41)
 * April 2020 (57)
 * March 2020 (45)
 * February 2020 (39)
 * January 2020 (26)
 * December 2019 (23)
 * November 2019 (18)
 * October 2019 (29)
 * September 2019 (32)
 * August 2019 (31)
 * July 2019 (29)
 * June 2019 (32)
 * May 2019 (39)
 * April 2019 (36)
 * March 2019 (32)
 * February 2019 (36)
 * January 2019 (32)
 * December 2018 (36)
 * November 2018 (29)
 * October 2018 (35)
 * September 2018 (24)
 * August 2018 (25)
 * July 2018 (41)
 * June 2018 (46)
 * May 2018 (47)
 * April 2018 (53)
 * March 2018 (50)
 * February 2018 (70)
 * January 2018 (68)
 * December 2017 (5)
 * October 2017 (1)
 * August 2017 (1)
 * July 2017 (2)
 * June 2017 (2)
 * May 2017 (3)
 * April 2017 (1)
 * March 2017 (4)
 * February 2017 (5)
 * January 2017 (4)
 * December 2016 (2)

0 1




UNAUTHORIZED USE OF PHOTOS TO ILLUSTRATE ARTICLE IS "IN NO WAY TRANSFORMATIVE,"
SAYS CA9

Brian Murphy
15. August, 2022
https://www.passle.net/Content/Images/passle_logo-186px.png Passle
https://passle.net
149 1 11
Brian Murphy
 *  copyright
 *  fair use
 *  photography
 *  instagram
 *  embedding

Elliot McGucken is an award-winning fine-art photographer who specializes in
natural landscapes. (Check out his website.) In March of 2019, McGucken hiked
for several hours through Death Valley (talk about dedication) to capture
photographs of an ephemeral lake that had formed on the desert floor following
unusually heavy rainfall. As the court puts it, “[w]ith a little luck, a little
sweat, and plenty of skill, McGucken produced a series of photos of stunning
beauty.” The photos - which truly are spectacular – are included in the court’s
opinion.

McGucken posted the images on Instagram (natch), where they were shared widely.
Riding the wave of interest in his work, McGucken licensed the photos to several
publications (including The Daily Mail, Smithsonian Magazine, and Live Science).
About a month after he took the photos, online publisher Pub Ocean used twelve
of them, without permission, to illustrate an article titled “A Massive Lake Has
Just Materialized In The Middle Of One Of The Driest Places On Earth.” The
article described how the lake had formed, narrated how McGucken captured the
photos, and included various “digressions” about desserts and other naturally
occurring phenomena (such as desert superblooms and vanishing islands). Each
digression was illustrated with photography from third party sources. (The
opinion is silent as to whether Pub Ocean obtained licenses to use the other
photos. But you do the math.) In total, the article prominently featured 28
photos. How prominently? In the court’s view, “[i]n size, the photos dwarf the
text” to such an extent that the article “appear[ed] as a series of photos with
the text broken up into tiny captions underneath.” Sort of like a picture book.
Or a slide show. Or a listicle. (Or, perhaps, clickbait?) The court included
this example to illustrate the point (and I include it here so you can judge for
yourself):



McGucken sued for copyright infringement. The district court granted summary
judgment to Pub Ocean on fair use grounds. The Ninth Circuit reversed.

[An aside:  if McGucken’s name sounds familiar, it may be because we have
blogged about another lawsuit that he filed in S.D.N.Y., in which he alleged
that Newsweek had infringed upon his copyright when it used Instagram’s
embedding functionality to link to one of his Death Valley photos to illustrate
an article. That case settled after the district court denied Newsweek’s motion
to dismiss on fair use grounds (see here) and on the grounds that McGuckin had
authorized the use when he agreed to Instagram’s TOS and platform policies (see
here, here and here).]

In any event, the panel’s fair use analysis is straightforward.

Purpose and Character of the Use. Pub Ocean’s use of the photos was "in no way
transformative" since it had used McGucken’s photos for the same purpose for
which they had been created: as a “clear, visual recording of the lake.” Nor did
the article written by Pub Ocean do anything to present the photos in a new or
different (and therefore transformative) light. On the contrary, the text was
little more than non-transformative “informative captions”:

“Photos are inserted every three to four sentences in an article structured as a
continuous narrative. There is at most a loose topical connection between each
portion of the article and the photos that appear alongside it. Photos of the
ephemeral lake appear in roughly the place in the article where it is explicitly
discussed. The article does not contain captions that directly describe or
engage with the photos. Rather, it essentially uses the photos as visual
‘filler.’”

The panel specifically rejected Pub Ocean’s argument that the article was
transformative because it had placed McGucken’s photos in a wider and more
expansive context because it included discussion (even if brief) of other
ephemeral, natural phenomenon:

“Practically speaking, it is hard to imagine what would not be a fair use, or
what could not be readily turned into a fair use, under Pub Ocean’s theory. Any
copyrighted work, when placed in a compilation that expands its context, would
be a fair use. Any song would become a fair use when part of a playlist. Any
book a fair use if published in a collection of an author’s complete works. It
would make little sense to treat this kind of ‘recontextualizing’ or
’repackaging’ of one work into another as transformative.”

Accordingly, the first statutory factor goes to McGucken.

The Nature of the Copyrighted Work. The second factor also weighed against fair
use. Although the photos document a real (factual) event, they “are creative
because they were the product of many technical and artistic decisions.” And
although McGucken’s photos had been published previously, that does not
automatically weigh in favor of fair use: “while a work’s unpublished status
would weigh against fair use, the converse is not necessarily true” (cleaned
up).

Amount and Substantiality of Portion Used. Quantitatively, Pub Ocean used the
twelve photos in their entirety, with only minimal cropping. As a result,
qualitatively, the article took “the heart” of each of the photos. Pub Ocean’s
lacked any valid justification for the use (since it wasn’t transformative), and
Pub Ocean had “failed to put forward any evidence that other photographs or
visual aids were unavailable or an inadequate substitute for McGucken’s photos.”
Thus, McGuckin also wins the third factor.

Market Effect. Although the record didn’t include direct evidence of actual
market harm caused by Pub Ocean’s use of the photos – on the contrary, it was
undisputed that McGucken was able to license them to third parties even after
Pub Ocean’s article appeared – “to negate fair use McGucken need only show that
if the challenged use should become widespread, it would adversely affect the
potential market for the copyrighted work” (cleaned up). Here, Pub Ocean’s
article was a market substitute for both McGucken’s photos (since they present
good-quality reproductions of them) and for licensed derivative uses of the
photos by news organizations to illustrate articles. Indeed, “for some
consumers, [Pub Ocean’s] article would be even better than a standalone
collection of McGucken’s photos or a shorter article with no other content.”

Since all four statutory factors pointed “unambiguously in the same direction,”
the court rejected Pub Ocean’s fair use defense, directed the district court to
enter partial summary judgment for McGucken on that defense, and remanded for
further proceedings.

McGucken v. Pub Ocean Limited, __ F.4th __, 2022 WL 3051019 (9th Cir. Aug. 3,
2022)

unknownx500

More posts by Brian Murphy
Buzzfeed's Publication of Influencer's Motorcycle Accident Pics is a Fair Use
Brian Murphy
Copyright, Clearances and Concert Recordings: ABKCO Music, Inc. v. Sagan
Brian Murphy
Cardi B Prevails in Lawsuit Against the Man with the Tiger (and Snake) Tattoo
Brian Murphy
Court Finds Holes in Plaintiff's Case Alleging Copyright Infringement of Lace
Designs
Brian Murphy
LGBTQ+ Content Creators' False Advertising Claims Against YouTube Fail
Brian Murphy
Recent posts from Advertising Law Updates
FTC Seeks Public Comment on Potential Revisions to the Green Guides and on a
Possible Rulemaking
Jeff Greenbaum
RIP: The Traditional SAG-AFTRA Commercials Contract
Dorian Thomas
NY Law Now Requires Do-Not-Call Notice at Outset of Telemarketing Calls
Kate Patton, Terri Seligman
Is it "Made in the USA"? It Depends on Which Law Applies . . .
Jeff Greenbaum
What Does it Mean to be a "Verified" Seller Online?
Jeff Greenbaum
 repost  cancel

As a free user, you can follow Passle and like posts.

To repost this post to your own Passle blog, you will need to upgrade your
account.

For plans and pricing, please contact our sales team at sales@passle.net

Sorry, you don't have permission to repost or create posts.

 cancel

Repost successful!

View the repost

Repost successful!

Your repost is currently a draft. Review your repost and request approval.

Something went wrong whilst reposting - please try again.

Sorry - this is not an option. This post already exists in the Passle you have
selected.

Try reposting to another Passle.

 * FRANKFURT KURNIT KLEIN & SELZ PC
   * About Us
   * Practice Areas
   * Our Attorneys
   * Events & Education
   * News & Press
   * Contact
 * contact us
   
   New York
   28 Liberty Street
   New York, NY 10005
   
   P  (212) 980 0120
   F  (212) 593 9175
   
   Emailinfo@fkks.com
   
   Los Angeles
   2029 Century Park East
   Los Angeles, CA 90067
   
   P  (310) 579 9600
   F  (310) 579 9650
   
   Emailinfo@fkks.com

 * legal
    * © 2022 Frankfurt Kurnit Klein & Selz PC
    * Privacy Policy
    * Disclaimer
    * Attorney Advertising
   
    * 
    * 
    * 
    * 




Cookie Control

This site uses cookies. Some of these cookies are essential, while others help
us to improve your experience by providing insights into how the site is being
used, including - in some instances - sharing data with other customers. You can
use this tool to change your cookie settings. Otherwise, we’ll assume you’re OK
to continue.

Some of the cookies we use are essential for the site to work.

We also use some non-essential cookies to collect information for making reports
and to help us improve the site. Most cookies collect information in an
anonymous form. Some of our non-essential cookies will allow us to share
tracking data regarding the performance of emails and post views with other
customers. If you do not wish us to share data relating to your use of this
Website, please turn your cookies off using this Cookie Control tool.

You can find out more, including how to control our third-party cookies and how
to adjust your browser settings by viewing our Cookie Policy.

I'm fine with this Turn cookies off
More details