FameFlynet, Inc. v. Jasmine Enters., Inc.
FameFlynet, Inc. v. Jasmine Enters., Inc.
Opinion of the Court
Plaintiff FameFlynet Inc. ("FFN") brings a copyright claim against defendant Jasmine Enterprises, Inc. for alleged infringement of FFN's copyright in three photographs of Nicky Hilton and James Rothschild taken at their July 10, 2015 celebrity wedding ("the Hilton-Rothschild Photos"). Currently before the Court is FFN's motion for summary judgment as to liability [58]. For the reasons explained below, the Court grants FFN's motion.
*909Background
FFN is a California-based company that provides photojournalism services and owns the rights to many photographs, primarily featuring celebrities, which it licenses to online and print publications for profit. R. 84 ¶¶ 1-3 (Jasmine's L.R. 56.1 Response to FFN's Statement of Material Facts).
Jasmine is an Illinois-based company that sells wedding dresses out of a retail store, owns and operates a website (www.jasminegalleria.com), and operates a blog with posts on fashion trends and news about weddings (http://jasminegalleria.com/blog). Id. ¶ 12; R. 91 ¶¶ 1-2. In October 2015, FFN observed the Hilton-Rothschild Photos on Jasmine's blog, along with the comment: "Now without further ado ... let's discuss THE dress ... Isn't that a dream? Elegant and timeless," along with a photo of a similar-looking Jasmine wedding dress and the caption "Real Celebrity Wedding ... Acquire It! Jasmine Couture Style F161069." R. 84 ¶ 22; R. 91 ¶ 12; R. 85-2 at 68-69. Jasmine employee Allison Paschold originated this posting in August 2015. R. 84 ¶¶ 23-26. The blog post gave credit for the images to "POPSUGAR.com." R. 91 ¶ 13. Neither Jasmine nor Allison Paschold had FFN's permission to copy or display the Hilton-Rothschild Photos. Id. ¶ 28. After the blog posting date, FFN continued to sell licenses to the Hilton-Rothschild Photos for amounts ranging from $11.73 to $250. R. 85-2 at 62.
FFN's president Boris Nizon lacks specific knowledge about Jasmine, its website, its blog, or any financial benefits Jasmine receives from them. R. 91 ¶¶ 3, 6-7, 9. As a general matter, however, FFN's business model of acquiring celebrity photos and selling them to online and print media outlets depends on being able to control the timing and volume of the distribution of its photos. R. 84 ¶ 7. When a photograph is stolen, FFN loses the ability to control that photograph's exclusivity, id. ¶ 9, and when a photo is leaked to the public, the value of the photograph usually diminishes immediately, id. ¶ 10. The value of photos typically goes down as they get older. R. 91 ¶ 15.
FFN sued Jasmine for copyright infringement in the Southern District of New York in September 2016. R. 1. The Southern District of New York granted Jasmine's motion to change venue in June 2017. See R. 45. That same month, FFN rejected Jasmine's offer of judgment under Fed. R. Civ. P. 68 for $15,000 including attorney's fees. R. 83-3. FFN instead has elected to recover statutory damages as *910well as attorney's fees. In September 2017, FFN moved for summary judgment as to liability only. R. 58.
Standard
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett ,
Analysis
Copyright infringement has two elements: "(1) ownership of a valid copyright, *911and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc. ,
Jasmine instead asserts that summary judgment should be denied based on its affirmative defense of fair use. "Fair use is a mixed question of law and fact, which means that it may be resolved on summary judgment if a reasonable trier of fact could reach only one conclusion-but not otherwise." Ty, Inc. v. Publications Int'l Ltd. ,
Congress has provided four statutory factors for courts to consider in evaluating a fair use defense. They are: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."
A. First Factor - Purpose and Character of Use
The first factor requires courts to determine not "whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper & Row Publishers, Inc. v. Nation Enterprises ,
Jasmine attempts to distinguish its blog from its website and suggest that the blog could be considered to be for "nonprofit educational purposes,"
The first prong of the fair use inquiry also asks whether copying "permissibly 'transforms' and thus 'complements' the original, as opposed to creating a 'substitute' that 'supersedes' the original." Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC ,
This case is nothing like Miller UK Ltd. v. Caterpillar Inc. ,
As explained in n.1 above, this Court has stricken four statements of fact made in a declaration filed by FFN's lawyer about the purposes of Jasmine's blog (R. 61 ¶¶ 8-9, 19, 21). But that does nothing to move the needle in Jasmine's favor. The same is true for FFN's president's lack of knowledge about the purpose of Jasmine's blog. Jasmine has the burden of proof on its affirmative defense, Chicago Bd. of Educ. ,
B. Second Factor - Nature of Copyrighted Work
The second "factor calls for recognition that some works [like fiction] are closer to the core of intended copyright protection than others [like news broadcasts or factual compilations], with the consequence that fair use is more difficult to *913establish when the former works are copied." Campbell ,
C. Third Factor - Amount and Substantiality of Portion Used
The third factor "recognizes that the more of a copyrighted work that is taken, the less likely the use is to be fair, and that even a less substantial taking may be unfair if it captures the essence of the copyrighted work." Infinity Broad. Corp. v. Kirkwood ,
D. Fourth Factor - Effect of Use on Potential Market
The fourth factor "requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original." Campbell ,
Jasmine says that based on the evidence of FFN's sales of the Hilton-Rothschild Photos before and after the blog post, Jasmine's use of these particular Photos did not reduce their value (at least not substantially). But this argument ignores the question of "whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original." Campbell ,
E. Holistic Assessment
As this Court explained in Leveyfilm ,
*914The Seventh Circuit's analysis in Ty demonstrates that the dichotomy at the heart of the first factor between new works that transform and complement the original versus new works that serve as a substitute for and supersede the original is best understood in terms of the fourth factor, i.e. , the effect the new work has on the market for the original work. An analysis that properly combines the first and fourth factors generally results in fair uses that fall into one of two categories: (1) a use that enhances the market for the original work (i.e. , book reviews); or (2) a use that creates a new market for the new work that references the original work and does not detract from the original work's market (parody).
There is no evidence that Jasmine's use of the Hilton-Rothschild Photos either enhanced the Photos' fair market value like a book review or created a new market like a parody. A consideration of the first and fourth factors together thus further weighs against a fair use defense.
Jasmine relies on three main fair use cases involving photographs in support of its contrary position. All are readily distinguishable, first and foremost because they each involved use of a photograph for parody or criticism. See Ty ,
Jasmine points to the Seventh Circuit's decision in Kienitz , where a photographer sued an apparel company for copyright infringement based on its t-shirts displaying a heavily modified version of a copyrighted photograph of the Mayor of Madison, Wisconsin.
Jasmine also relies on Galvin . But the Galvin court found that a satirical flyer depicting a copyrighted photo of a political parade would not "plausibly cut into demand for the Photograph" largely because the flyer was a "complement" rather than a "substitute."
Finally, Jasmine relies on *915Katz v. Chevaldina ,
In sum, under the "general standard" set forth in Chicago Bd. of Educ. , Jasmine undisputedly copied the entirety of the Hilton-Rothschild Photos, and Jasmine has not met its burden of "present[ing] ... evidence" showing that it used the copyrighted works "to pursue an aim that the law recognizes as proper." See
Conclusion
For the foregoing reasons, FFN's motion for summary judgment as to liability [58] is granted.
Jasmine often responds to FFN's statements of material fact by saying that Jasmine "lacks sufficient knowledge to form a belief as to the truth of this statement" or by disputing the fact without citing record evidence in support. See R. 84. These responses are deemed admissions under Fed. R. Civ. P. 56 and L.R. 56.1, which require citation to specific evidence to establish a fact dispute. See, e.g. , Ortega v. Chicago Pub. Sch. of the Bd. of Educ. of the City of Chicago ,
Jasmine has filed a surresponse to FFN's motion for summary judgment (R. 96) taking issue with FFN's counsel's affidavit filed in support of FFN's motion for summary judgment (R. 61). Jasmine claims that FFN's counsel should not be able to submit an affidavit in support of summary judgment while taking the position that he is not a witness in this case. Jasmine takes particular issue with four statements FFN's counsel makes in his affidavit about the purpose of Jasmine's blog, including statements that it is "a popular and lucrative enterprise that purposefully displays celebrity and/or news photographs," that it is used "to sell merchandise," and that Jasmine receives financial benefits from the blog in the form of increased traffic to its website. R. 61 ¶¶ 8-9, 19, 21. FFN relies on these assertions by its counsel as its sole support for ¶¶ 13, 14, 30, and 33 of FFN's L.R. 56.1 Statement of Material Facts (R. 59).
Jasmine is correct that ¶¶ 8-9, 19, 21 of FFN's counsel's affidavit recite improper substantive testimony without record support and without a showing of a basis for personal knowledge. See Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to support ... a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."). The Court therefore strikes these four statements from FFN's counsel's declaration. The Court also strikes ¶¶ 10-14 of FFN's counsel's declaration, which merely repeat statements from the declaration of FFN's president Nizon as to which FFN's counsel has not made a showing of personal knowledge. (FFN cites Nizon's declaration-not its counsel's declaration-in support of these statements in its L.R. 56.1 Statement of Material Facts (R. 59).) But the Court declines to strike the remainder of FFN's counsel's declaration, which introduces and recites facts from attached discovery responses. It is customary for counsel to submit a declaration authenticating and reciting basic facts from discovery exchanged in a case.
The Court also declines Jasmine's request for sanctions against FFN's counsel under Fed. R. Civ. P. 11. This is not a situation where counsel should have known the facts did not support his client's claims but made the claims anyway, as in Senese v. Chicago Area I.B. of T. Pension Fund ,
Reference
- Full Case Name
- FAMEFLYNET, INC. v. JASMINE ENTERPRISES, INC.
- Status
- Published