Blogger's Use of ‘Unflattering' Photo Was Fair Use

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By Blake Brittain

Sept. 17 — A blogger's use of an “unflattering” photo of a minority owner of the Miami Heat was a protected fair use under copyright law, the U.S. Court of Appeals for the Eleventh Circuit ruled Sept. 17.

The court said that Irina Chevaldina's use of a photograph of her former landlord Raanan Katz sticking his tongue out—which she found through a Google image search—was non-commercial and transformative, and therefore Chevaldina was not liable for infringing Katz's copyright in the photo.

“When an argument for transformative use is as strong as this, that factor will often shape the court's analysis of other factors—and should, according to Supreme Court precedent” like Campbell v. Acuff-Rose Music, Inc. (U.S. 1994), Peter C. DiCola, a law professor at Northwestern University, Chicago, told Bloomberg BNA in an e-mail.

“For example, even though Chevaldina used the entire photo, and using the entirety of a work might otherwise hurt her case, the use is still fair because she needed to use the whole photo to make her point,” DiCola said.

Katz is a property developer. Since 1986, he has been a limited partner in the entity that operates the National Basketball Association's Miami franchise.

‘Most Immoral Human-being in the World.'

His company, RK Centers, has holdings in Florida and in New England. Chevaldina was a tenant at one of Katz's commercial properties, according to a website maintained by the Center for Indivdual Rights, which represented her, and their business relationship ended badly.

Her blog posts “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,' ” the court said.

Photographer Seffi Magriso was the original owner of the copyright interest in the picture. Katz purchased the copyright from Magriso in June 2012 after Chevaldina started using it on her blog.

Katz sued Chevaldina and Google for infringement shortly after acquiring the rights. Katz later amended the complaint to remove Google as a defendant.

Primarily Educational and Transformative

From May 2011 to September 2012, Chevaldina used the picture in three ways—copied in its original state, accompanied by captions and pasted into anti-Katz cartoons.

The court analyzed the uses based on four factors set forth in the fair use provision of the Copyright Act of 1976, 17 U.S.C. §107: The purpose and character of the use, the nature of the copyrighted work, the amount of the work used and the effect of the use on the potential market or value of the work.

In this case, the character of the use particularly favored Chevaldina. The court said that Chevaldina's use was transformative because “she used Katz's purportedly ‘ugly' and ‘compromising' appearance to ridicule and satirize his character.”

“She used the photograph in a transformative way by taking the photo into a different context and reusing it to support her arguments criticizing Katz,” DiCola said.

The purpose of the work, the court said, was “primarily educational, rather than commercial.”

“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,” the court said. The court also said that Chevaldina's mention of wanting to write a book did not “transform the blog post into a commercial venture.”

The court said that the nature of the photo was factual—not artistic—because it was “merely a candid shot in a public setting,” which also weighed in favor of Chevaldina.

The court noted that while Chevaldina used the photo in its entirety, this factor “weighs less when considering a photograph—where all or most of the work often must be used in order to preserve any meaning at all.”

Finally, the court said there was no evidence that the use “had or would have any impact upon any actual or potential market” for the photo.

“For the foregoing reasons, we affirm the district court's grant of summary judgment to Chevaldina,” the court said.

The per curiam ruling was issued by Judges Gerald Bard Tjoflat, Charles R. Wilson and Susan H. Black.

Katz was represented by Alan J. Kluger of Kluger Kaplan Silverman Katzen & Levin PL, Miami. Chevaldina was represented by Michael E. Rosman of the Center for Individual Rights, Washington.

To contact the reporter on this story: Blake Brittain in Washington at

To contact the editor responsible for this story: Mike Wilczek at

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