A photographer is suing a real estate media site for copyright infringement after publishing several of his photos without permission. Scott Hervey and Jamie Lincenberg discuss this case and explain how media companies can handle similar situations in a post-Warhol world on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Scott:
One of the recent copyright infringement cases post the Supreme Court’s decision in Warhol is Brandon Vogts, I hope I’m pronouncing that correctly. Brandon Vogts vs. Penske Media Corporation. This case involved the display of Vogts photographs in connection with various articles appearing on Penske’s Dirt online media site. I’m Scott Hervey from Weintraub Tobin. I’m joined today by my colleague Jamie Lincenberg. We are going to take a look at this case and talk about how online media companies can deal with similar situations in a post-Warhol world, on this next installment of The Briefing by Weintraub Tobin.

These are the facts of this case boots is a professional photographer who specializes in real estate photography. His clients include real estate companies, real estate agents and interior designers. The majority of these clients are real estate agents who retain Vogts to photograph a property to facilitate its sale. Dirt.com is an online news publication owned by Penske Media Corporation. Dirt publishes material on real estate transactions involving persons in the entertainment industry or prominent business persons. Dirt’s articles are intended to provide a unique peek into those individuals’ lifestyle. Dirt published various articles about transactions involving certain properties and used Vogts photographs in connection with those articles. Vogts eventually sued for copyright infringement.

Jamie:
And, Dirt advanced a fair use defense. Dirt claimed that it featured the photographs to provide readers with what he believed was a unique insight into the lifestyles of individuals who were involved in the transaction, including commentary and critique of the property featured in the photographs, and used only those photographs that Dirt Publishers believes were necessary to do so. After both parties moved for summary judgment, the Supreme Court ruled on Andy Warhol Foundation for the Visual Arts versus Goldsmith.

Scott:
Finding that Boots had established a prima facial case of copyright infringement, the court turned to Dirt’s fair use argument. Now, to determine whether a work constitutes fair use, courts engage in a case by case analysis and a flexible balancing of four factors. Those factors are one, the purpose and character of the use, including whether such use is of a commercial nature or for a nonprofit educational purpose. Two, the nature of the copyrighted work that is allegedly infringed. Three, the amount and substantiality of the portion used in relation to the infringed work as a whole. And four the effect the use will have on the potential market for or value of the original copyrighted work.

Jamie:
The first factor assesses whether the use is transformative, as established in the Supreme Court case of Campbell versus Acuff Rose Music. Transformativeness occurs where the new work adds something new, with a further purpose or different character, altering the first with new expression, meaning or message right.

Scott:
And that has been the traditional test for transformativeness. But now the Warhol decision requires courts to ask, as part of examining transformativeness, whether and to what extent the use at issue has a purpose or character that is different from the original, and whether that different purpose supports a justification for copying. So now the first fair use factor will analyze whether the purpose of the use of the second work is different enough from the first to reasonably justify a copying. Under the Warhol decision, a transformative use cannot be found for any use that just adds some new expression, meaning, or message. Now, the purpose of the use must be distinct enough from the purpose of the original use in order to justify a copying. For example, in Warhol, the Supreme Court said that The Orange Prince, which was Warhol’s work, can be perceived to portray Prince as iconic, whereas Goldsmith’s portrayal was photorealistic. But the purpose of the use was to illustrate a magazine about Prince with a portrait of Prince. And the difference between illustrating a magazine about Prince with a portrait of Prince and portraying Prince somewhat differently from Goldsmith’s photograph, with no attendant critical bearing on her photograph, was not enough to justify the copying.

Jamie:
Dirt argued that its use is for a different purpose. Boot’s use is to portray the property in connection with the marketing of the property for sale, while Dirt’s use is to provide commentary on the lifestyles of various celebrities who either purchased or sold the property. The court said that’s not enough, right?

Scott:
That’s right. The court said that this commentary commenting on celebrity lifestyle is at Campbell’s lowest ebb. And because Dirt’s use had no critical bearing on the original work, so no commentary on the original photographs themselves, the court said that there is little justification for the copying. So the court found the first fair use factor weighed in favor of Vaught and against the finding of fair use. Now, the court went on to examine the remaining fair use factors and found them all to favor Vaught as well. So in the end, the court ruled against Dirt and ruled in favor of Vogts on this fair use defense.

Jamie:
So, Scott, what should we take away from this case?

Scott:
Yeah, so in a previous podcast on the effect of the Warhol decision on documentarians and documentaries, I theorized that the use of a third-party photo or a video clip in an audiovisual documentary in the context of a biographical anchor is likely dead. I now summarize that this case is the proverbial nail in the coffin. If a subsequent user isn’t using an existing work for criticism or commentary of the underlying work or in a manner that is transformative in both context and purpose, then there will be no fair use.

Jamie:
Thanks, Scott. That’s really interesting and really helpful to know moving forward.

Scott:
Thanks for listening to this episode of The Briefing. We hope you enjoyed this episode. If you did, please remember to subscribe and leave us a review and share this with your friends and your colleagues. And if you have any questions about the topics we covered today, please leave us a comment.