The United States District Court for the Southern District of New York recently dismissed a claim of copyright infringement against Mic Network, Inc. over its use of a partial screenshot of a New York Post article in a subsequent publication. The screenshot featured a photograph of a man in a bar, with the caption “Why I won’t date hot women anymore” on one side and a selection of the article’s text on the other. The Court found Mic’s use of the screenshot was protected by the fair use defense.
The case arose when photographer Stephen Yang sued Mic for copyright infringement over Mic’s use of the photograph Yang licensed to the New York Post for its April 2017 article, which recounted the dating experience of a man living in New York. The article created a great deal of buzz on social media and provoked heated debate and substantial criticism because of its provocative content.
In response to this debate, Mic published its own article, “Twitter is skewering the ‘New York Post’ for a piece on why a man ‘won’t date hot women,‘” which featured the screenshot, including a portion of Yang’s photograph. Yang sued for copyright infringement over Mic’s use of his photograph. Mic responded with a motion to dismiss Yang’s claim on the grounds its use of the photograph was protected by the fair use doctrine. (As evidenced by its title, Mic’s article discussed and added to the criticism surrounding the original article.)
To determine whether a work is protected by the fair use doctrine, courts consider several factors: (1) the purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes; (2) the nature of the copyrighted work, including whether it is creative or published; (3) the amount and substantiality of the portion of the work used; and (4) the effect of the use on the potential market for or value of the copyrighted work. The purpose of the doctrine is to protect secondary works that add value to the original and transform the original work into “new information, new aesthetics, new insights, and understandings.”
The Court held that Mic’s use of the screenshot qualified as fair use based on the following:
Purpose and Character of Use. The Court determined Mic’s transformative use of the screenshot outweighed its commercial purpose and any evidence of bad faith. The Court held Mic transformed the screenshot by using it to illustrate why the New York Post article grabbed the public’s attention and to identify the target of its criticism. The Mic article was clearly intended to mock the New York Post article and convey its subject in a different light – describing the man interviewed for the article as an “insufferable private equity executive” instead of a successful “Upper East Sider with a muscular build and full head of hair.”
Nature of the Copyrighted Work. The Court held the nature of the copyrighted work did not move the needle in either direction. The Court’s considerations included: (1) whether the work is expressive or creative; and (2) whether the work is published or unpublished. Although the Court deemed the copyrighted work somewhat creative, the fact that the photograph was previously published weighed in Mic’s favor.
Amount and Substantiality. The Court determined the amount of the photograph used weighed in favor of fair use. The Court held Mic’s use of the “significantly cropped” version of the photograph was reasonable for purposes of identifying the object of the controversy and satirizing the New York Post article. Yang offered alternatives that he claimed would have been less infringing, such as using embedded tweets rather than the screenshot, but his arguments were rejected.
Potential Effect of the Use on the Market or Value. The Court held the fourth factor favored fair use because Mic’s use of the screenshot was unlikely to hijack the market for Yang’s photograph. Mic displayed the photograph as part of the screenshot in a cropped and composite manner, making it unlikely that potential purchasers of the photograph would prefer to license the screenshot instead.
Ultimately, the Court deemed Mic’s use of the screenshot fair as a matter of law. While the Court emphasized primarily the transformative nature of Mic’s use, the Court also credited the fact that the photograph had already been published and the lack of risk to the market for the original photograph as the grounds for its ruling. The case is: Yang v. Mic Network, Inc., No. 18-CV-7628 AJN, 2019 WL 4640263 (S.D.N.Y. Sept. 24 2019).