Shapiro Arato Bach Wins Fair-Use Dismissal In Copyright Infringement Case

On April 27, 2020, Judge Eduardo Ramos of the United States District Court for the Southern District of New York ruled for Shapiro Arato Bach client the Manhattan Institute For Policy and dismissed a copyright-infringement lawsuit brought by Richard Harbus, a freelance photographer, over the Manhattan Institute’s use of one of Harbus’s photographs on its website.

The photograph-in-question depicted Governor Andrew Cuomo at a news conference and was licensed by Harbus to the New York Post, which published it accompanying an op-ed piece written by one of the Manhattan Institute’s research Fellows. Thereafter, the Manhattan Institute posted the op-ed as it was published by the New York Post on its website, including a portion of the photograph. It also allowed users to share the op-ed and entire photograph on Facebook. Harbus filed suit against the Manhattan Institute, alleging that its use of the photograph was unauthorized and constituted copyright infringement.

Shapiro Arato Bach filed a motion to dismiss on behalf of the Manhattan Institute arguing that its display of the photograph was a fair use. The Court agreed, finding that each of the four statutory factors weighed in the Institute’s favor.

As the motion had argued, the Court held that first fair-use factor favored fair use because the Manhattan Institute had used the photograph for a different purpose and in a different context than Harbus. While Harbus created the photograph simply to depict Governor Cuomo delivering a speech, the Manhattan Institute used the photograph to “educate the public about its work, and to document the Article’s publication in the New York Post.” The Court’s conclusion that such a use was transformative was “bolstered by the fact that the Manhattan Institute’s use of the photograph further[ed] its research, scholarship, and educational efforts,” which the Court found fell plainly within the “statutory examples of permissible uses” in 17 U.S.C. § 107. The Court further held that the non-commercial nature of the non-profit Institute’s use of the photograph supported a fair-use finding.

Accepting Shapiro Arato Bach’s arguments on the other factors, the Court also held that the photograph was “a factual and informational, as opposed to a creative work,” that the amount and substantiality of the photograph used by the Institute on its website was reasonable (and, indeed, that it would have been reasonable for the Institute to display the entirety of the photograph on its website, as it had on Facebook), and that the Manhattan Institute’s use of the photograph was unlikely to affect the market for the original photograph.

The Court therefore held that it was “evident that the Manhattan Institute’s use of the Photograph was fair” and granted the Manhattan Institute’s motion to dismiss.

The Motion to Dismiss and Reply papers can be read here and here.

The decision can be found here.