Otto v. Hearst Commc'ns, Inc.

Decision Date10 December 2018
Docket Number1:17-cv-4712-GHW
Citation345 F.Supp.3d 412
Parties Jonathan OTTO, Plaintiff, v. HEARST COMMUNICATIONS, INC., Defendant.
CourtU.S. District Court — Southern District of New York

James H. Freeman, Richard Liebowitz, Liebowitz Law Firm, PLLC, Valleystream, NY, for Plaintiff.

Ravi Viren Sitwala, Jennifer Deanne Bishop, Jonathan R. Donnellan, Hearst Corporation, Office of the General Counsel, New York, NY, for Defendant.

OPINION AND ORDER

GREGORY H. WOODS, United States District Judge

I. INTRODUCTION

In June of 2017, Plaintiff Jonathan Otto attended a friend's wedding at the Trump National Golf Club in New Jersey. To the surprise of the celebrants, President Trump, the owner of the venue, crashed the wedding. The guests seem to have been delighted by the appearance of this unexpected guest, who lingered at the reception to take photographs with the newlyweds and sign autographs. Otto took the opportunity to capture the moment and snapped a photo on his iPhone, and later texted it to another guest at the wedding, Sean Burke. The next morning, Otto discovered that the image had gone viral: it had been published on the social media platform Instagram and in several media outlets, including Esquire.com, operated by Defendant Hearst Communications. Perhaps recognizing a lucrative business opportunity, Otto retained counsel the following day and quickly filed a copyright in the image. Otto brought this action, among several others against various media publishers, alleging that his copyright in the photograph had been infringed.

Before the court are cross motions for partial summary judgment. Otto seeks judgment on Hearst's liability for copyright infringement and the affirmative defenses asserted by Defendant. Pl.'s Memo iso Mot. for Part. Summ. J. (Dkt. No. 36) ("Pl.'s Memo"). Defendant seeks judgment on its fair use defense and on whether Hearst's alleged infringement was willful. Def.'s Memo iso Mot. for Part. Summ. J. and Opp. to Pl.'s Mot. for Summ. J. (Dkt. No. 51) ("Def.'s Memo."). Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose—regardless of whether that photograph was created for commercial or personal use. For this reason, among others, Plaintiff's motion is granted in whole and Defendant's motion is denied in whole.

II. BACKGROUND1
A. Facts
1. The Parties

Plaintiff in this matter is Jonathan Otto, a Vice President at Deustche Bank. This suit arose from a photograph Otto took on his iPhone at a private wedding, which was subsequently published by several media outlets, including Defendant. Otto, self-described as just a "guy with an iPhone," is not and has never been a professional photographer. Pl.'s Memo. at 1; Def.'s 56.1 Stmt.2 ¶¶ 7–8.

Defendant Hearst Communications, Inc. is a corporation organized under Delaware law. Compl. (Dkt. No. 1) ¶ 6. Hearst is a well-known in the media industry; it owns newspapers, television channels and stations, and publishes news in newspapers, magazines, and as relevant here, on the Internet. Def.'s 56.1 Stmt. ¶¶ 12–13, 25. One of the media outlets owned by Hearst is the Esquire magazine and website. Id. ¶¶ 25, 52. As a media conglomerate, Hearst sometimes licenses photographs for use in its publications. Id. ¶¶ 14–18. To assist with this process, Hearst employs in-house attorneys who are familiar with copyright law and licensing practices in the publishing industry. Id.

2. The Wedding

On June 10, 2017, Otto attended his friend's wedding at the Trump National Golf Club in Bedminster, New Jersey. Def.'s 56.1 Stmt. ¶¶ 1, 6, 9. To the guests' surprise, Donald Trump, President of the United States and owner of the club, appeared at the wedding. Id. ¶ 3. President Trump stayed to sign autographs and take photographs with the couple. Ex C to Compl. (Dkt. No. 1-3) ("Esquire Article"). Seizing the opportunity to capture a "remarkable" event, Otto took several photographs of President Trump on his iPhone, including the one at issue in this matter (the "Photograph"). Def.'s 56.1 Stmt. ¶¶ 29–30, 32; see also Compl. ¶ 7; Ex. A to Compl. (the "Photograph"). The Photograph depicts President Trump with the bride, Kristen Piatowski. Def.'s 56.1 Stmt. ¶ 28; see the Photograph. Other wedding guests took similar photographs. Def.'s 56.1 Stmt. ¶ 41.

At the time Otto took the Photograph, his intention was to document an important memory and newsworthy event. Def.'s 56.1 Stmt. ¶ 33; Ex. A to Bishop Decl. (Dkt. No. 57-1) ("Otto Tr.") at 15:22–16:3, 19:7–9. He planned to use the Photograph for personal, rather than commercial, purposes, and did not intend to share the photograph with friends and family or share it on social media. Def.'s 56.1 Stmt. ¶¶ 31–32; Pl.'s Resp. to Def.'s 56.1 Stmt. (Dkt. No. 72) ¶¶ 123–24. After taking the photo, Otto used an iPhone editing application to modify the image. Def.'s 56.1 Stmt. ¶ 34. Otto's name was entered in the copyright section of the Photograph's data. Id. ¶ 35. One other wedding guest, Sean Burke, asked Otto to share the Photograph with him, which he did by text message. Id. ¶ 38. Otto did not ask how Burke planned to use the Photograph, and the two did not discuss the Photograph any further that night. Pl.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 125, 127; Otto Tr. at 25:21-23. Otto did not share the Photograph with anyone else and did not post the photograph on his own social media platforms. Def.'s 56.1 Stmt. ¶¶ 36, 39.

3. The Publication

On Saturday, June 11, the day after the wedding, Otto discovered that the Photograph he sent to Burke had been published in several media outlets, including TMZ, CNN, the Washington Post, and the Daily Mail. Def.'s 56.1 Stmt. ¶ 42. Otto reached out to TMZ via Twitter, notifying them that they had used his photograph without permission and that he wanted to be compensated and credited. Id. ¶¶ 44–45.

Otto texted Burke and asked "Hey, TMZ & others using my photo above without credit/compensation. You send to anyone? I want my cut." Id. ¶ 43; Otto Decl. iso Pl.'s Mot. for Part. Summ. J. (Dkt. No. 38) ¶ 12, Ex. E to Otto Decl. (Dkt. No. 38-5) ("Burke Text Messages"). Mr. Burke responded "Nope! They reached out to kat," "kat" being another guest who had attended the wedding. Def.'s 56.1 Stmt. ¶ 43; Otto Decl. ¶ 12; Burke Text Messages. The Photograph was also posted to the social media platform Instagram by Laura Piatowski, a relative of the bride ("Ms. Piatowski"). Def.'s 56.1 ¶ 46. It appeared that the news outlets had published the Photograph, among others, after finding them on Ms. Piatowski's Instagram account. Id. ¶¶ 78, 80. Many other photographs depicting President Trump at the wedding were also circulated on the Internet. Id. ¶¶ 79, 81.

That same day, Hearst ran its own article on Esquire's website entitled "President Trump is the Ultimate Wedding Crasher." Compl. ¶ 11; Esquire Article. The article, written by Peter Wade, described President Trump's appearance at the wedding and was illustrated by three pictures, including the Photograph. Def.'s 56.1 Stmt. ¶¶ 54, 67; see Esquire Article. Wade, who is no longer employed with Esquire, had learned about the event from an article in The Hill . Pl.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 144–45, 147. In a Slack conversation with Esquire supervising editor Michael Sebastian, Wade stated that he was "trying to find the original source" and had come across several photos on Ms. Piatowski's Instagram. Sebastian Decl. iso Def.'s Mot. for Part. Summ. J. (Dkt. No. 54) ("Sebastian Decl.") ¶¶ 3–6; Ex. A to Sebastian Decl. ("Wade and Sebastian Slack Conversation"). Wade used the photographs from Ms. Piatowski's Instagram in the article, crediting her account as the source of the photos. Def.'s 56.1 Stmt. ¶¶ 49–50; Pl.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 138–39.

The Esquire article reads:

The most recognizable guest at Kristen Piatowski and Tucker Gladhill's wedding on Saturday night wasn't even invited. President Donald Trump crashed the couple's wedding taking place at Trump National Golf Club in Bedminster, New Jersey.
Photos surfaced on Instagram showing the husband and wife smiling with President Trump, who apparently stopped by to greet the couple and shake hands with the guests.
Trump has become such a fixture at nuptials at his resorts, the Bedminster club once advertised a Trump appearance as a potential feature of booking a wedding there, according to a now-discontinued brochure obtained by the New York Times:
"If [Trump] is on-site for your big day, he will likely stop in & congratulate the happy couple. He may take some photos with you but we ask you and your guests to be respectful of his time and privacy."
This was Trump's 24th visit to a golf course since he was elected. In addition to making an appearance, it looks like Trump also took the time to sign autographs for fans. One photo showed Trump with a Sharpie, waving a Make America Great Again hat.

Esquire Article.

Hearst did not know that Otto was the owner of the Photograph at the time of publication, and the article did not credit Otto as the creator or the copyright holder of the work. Def.'s 56.1 Stmt. ¶ 59; Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 149. Hearst did not license the Photograph from Otto, nor did it obtain Otto's consent for its use. Def.'s 56.1 Stmt. ¶¶ 60–62. In fact, Hearst did not have any communication with Otto before receiving the complaint in this matter. Id. ¶¶ 64–66. Nonetheless, Hearst removed the Photograph from its website after this suit was filed. Def.'s 56.1 Stmt. ¶ 109; Sebastian Decl. ¶ 15. The photograph is stored on Hearst's servers. Def.'s 56.1 Stmt. ¶ 55. Hearst does not charge for access to Esquire.com, but advertisements were displayed on the web page displaying the Trump article and Hearst earned revenue from those ads. Def.'s 56.1 Stmt. ¶¶ 56–57; Pl.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 157–59.

4. The Suit

The day after the Photograph was published widely on the Internet, Otto hired counsel and registered the Photograph with...

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