Katz v. Google Inc., 14–14525

• Decision Date: 17 September 2015
• Docket Number: No. 14–14525,14–14525
• Citation: 116 U.S.P.Q.2d 1060,802 F.3d 1178
• Parties: Raanan KATZ, an individual, Plaintiff–Appellant, v. GOOGLE INC., a Delaware corporation, Defendant, Irina Chevaldina, an individual, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

802 F.3d 1178

116 U.S.P.Q.2d 1060

Raanan KATZ, an individual, Plaintiff–Appellant

v. GOOGLE INC., a Delaware corporation, DefendantIrina Chevaldina, an individual, Defendant–Appellee.

No. 14–14525

United States Court of Appeals, Eleventh Circuit.

Sept. 17, 2015.

Alan J. Kluger, Michael B. Chesal, Jorge Delgado, Todd Alan Levine, Kluger Kaplan Silverman Katzen & Levine, PL, Joshua Evan Saltz, Peretz Chesal & Herrmann, PL, Miami, FL, for Plaintiff–Appellant.

Robert John Borrello, Herman Joseph Russomanno, III, Russomanno & Borrello, PA, Michael Terrell Davis, Benedict P. Kuehne, Law Office Of Benedict P. Kuehne, PA, Miami, FL, Marc A. Burton, Richard J. Burton, The Burton Law Firm, Peter Jay Solnick, Solnick Law Firm, PA, Aventura, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, WILSON and BLACK, Circuit Judges.

Opinion

PER CURIAM:

Raanan Katz holds the copyright to a candid photograph (the Photo) of himself in which his tongue protrudes askew from his mouth. Katz considers the Photo unflattering and embarrassing.¹ Irina Chevaldina copied the Photo into several scathing blog posts she wrote about Katz and his business practices. Katz appeals the district court's grant of summary judgment to Chevaldina on his copyright infringement claims, brought pursuant to 17 U.S.C. § 501. Katz argues the district court erred in finding Chevaldina was entitled to summary judgment based on her affirmative defense that her use of the Photo constituted fair use under 17 U.S.C. § 107. Upon review, we affirm.

I. BACKGROUND

Katz is a minority investor in the Miami Heat basketball team and a commercial real estate tycoon who owns and operates shopping centers through corporate entities collectively known as RK Centers. In February 2011, Seffi Magriso, a professional photographer, took a photograph of Katz while Katz was standing courtside at a basketball practice in Jerusalem. The Photo is a candid headshot of Katz in which his eyebrows are arched sharply upwards and his tongue is sticking out of his mouth. In Katz's opinion, the Photo is “ugly,” “embarrassing,” and “compromising.”

Haaretz, an Israeli newspaper, published the Photo online in an article about Katz's interest in buying the Hapoel Jerusalem basketball team.

Chevaldina is a disgruntled former tenant in one of Katz's shopping centers. She found the Photo through a Google image search. Chevaldina created a blog devoted to sharply criticizing Katz and the business practices of RK Centers. From May 3, 2011, to September 24, 2012, Chevaldina published 25 blog posts that reproduced the Photo and criticized Katz. Chevaldina reproduced the Photo in her blog posts in three ways: (1) copied in its unaltered, original state; (2) accompanied by sharply worded captions; or (3) cropped and pasted into mocking cartoons. For example, in a September 18, 2011 blog post where the Photo was copied in its unaltered, original state, Chevaldina lambasted Katz for allegedly ripping off a “young American Jewish single mother of [a] special needs child,” calling him “the most immoral human-being in the world.” In a September 12, 2012, blog post, Chevaldina criticized Katz's litigation strategies as frivolous and copied the Photo with a caption across Katz's chest that says, “HE RIPPED–OFF SPECIAL NEEDS LITTLE JEWISH GIRL.” In a February 19, 2012, post about Katz's preparation for a deposition, Chevaldina cropped Katz's face and superimposed it against a cartoon dunce hat.

On June 3, 2012, Magriso assigned all of his rights in the Photo to Katz. Katz then filed a complaint against Chevaldina alleging direct copyright infringement.² The parties filed cross-motions for summary judgment. The magistrate judge entered a Report and Recommendation (R & R) that recommended granting summary judgment to Chevaldina because her use of the Photo constituted fair use. Katz timely filed objections to the R & R. The district court overruled the objections, adopted the R & R, and granted summary judgment to Chevaldina. Katz timely appealed.

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Beal v. Paramount Pictures Corp., 20 F.3d 454, 458–59 (11th Cir.1994). “Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see Fed.R.Civ.P. 56(a).

III. DISCUSSION

The only issue in this appeal is whether Chevaldina's use of the Photo in her blog posts constitutes fair use, as a matter of law, under Section 107 of the Copyright Act. Under Section 107, “[n]otwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107.

In deciding whether a defendant's use of a work constitutes fair use, courts must weigh the following four factors: (1) the purpose and character of the allegedly infringing use; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; (4) and the effect of the use on the potential market or value of the copyrighted work.Id. These four statutory factors are not to be treated in isolation from one another. See Campbell v. Acuff–Rose Music, Inc.,

510 U.S. 569, 578, 114 S.Ct. 1164, 1170–71, 127 L.Ed.2d 500 (1994). Rather, they are “[a]ll are to be explored, and the results weighed together, in light of the purposes of copyright.” Id., 510 U.S. at 578, 114 S.Ct. at 1171. Based on our weighing of the factors discussed below, the district court did not err in granting summary judgment to Chevaldina because her use of the Photo in each blog post constituted fair use.³ We discuss each factor in turn.

A. Purpose and Character of the Work

The first factor—the purpose and character of the allegedly infringing work—requires consideration of “(1) whether the use serves a nonprofit educational purpose, as opposed to a commercial purpose; and (2) the degree to which the work is a transformative use, as opposed to a merely superseding use, of the copyrighted work.” Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1309 (11th Cir.2008) (quotation omitted). The district court did not err in concluding Chevaldina's use of the work was both noncommercial and transformative.

Every use of the Photo on the blog was of a primarily educational, rather than commercial, character. Chevaldina unabashedly criticized and commented on the dealings of Katz, his businesses, and his lawyers. Chevaldina's blog posts sought to warn and educate others about the alleged nefariousness of Katz, and she made no money from her use of the photo. See 17 U.S.C. § 107 (designating “criticism” and “comment” as fair use).

Katz argues the Photo served a primarily commercial purpose because, in a March 4, 2012, blog post, Chevaldina said she was “in the process of writing a book ‘Why RK Centers Was The Wrong Choice.’ ” Thus, Katz argues, Chevaldina used the Photo to advertise for commercial book sales. Chevaldina's reference to her intention to write a book about her experiences with Katz does not alone, however, transform the blog post into a commercial venture. Overall, the blog post retains her educational purpose of lambasting Katz and deterring others from conducting business with him. See March 4, 2012 Blog Post (“I hope my book will help ambitious people in their dream to be successful without selling the[ir] soul to the [d]evil.”). Moreover, the link between Chevaldina's commercial gain and her copying of the Photo was attenuated given that Chevaldina never wrote a book nor made any profits whatsoever. See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 83 (2d Cir.2014) (discounting commercial nature of use where “the link between the defendant's commercial gain and its copying is attenuated such that it would be misleading to characterize the use as commercial exploitation” (quotations and alterations omitted)).

Chevaldina's use of the Photo was also transformative. A use is transformative when it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” See Campbell, 510 U.S. at 579, 114 S.Ct. at 1171. Chevaldina's use of the Photo was transformative because, in the context of the blog post's surrounding commentary, she used Katz's purportedly “ugly” and “compromising” appearance to ridicule and satirize his character. See Swatch, 756 F.3d at 84 (“Courts often find such uses [of faithfully reproduced works] transformative by emphasizing the altered purpose or context of the work, as evidenced by the surrounding commentary or criticism.”); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir.2009) (“The use of a copyrighted work need not alter or augment the work to be transformative in nature.”); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1270 (11th Cir.2001) (finding transformative use where work was “principally and purposefully a critical statement”).

Chevaldina's use of the Photo was noncommercial and transformative. Accordingly, the first factor weighs in favor of fair use.

B. Nature of the Copyrighted Work

The second fair use factor—the nature of the copyrighted work—“recognizes that there is a hierarchy of copyright protection in which original, creative works are afforded greater protections than derivative works or factual compilations.” Suntrust, 268 F.3d at 1271. In evaluating this factor, courts consider (1) whether the work was previously published and (2) whether the work is primarily creative or factual. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563–64, 105 S.Ct. 2218, 2232, 85 L.Ed.2d 588 (1985).

There is no dispute that the Photo was...