Case 1:22-cv-01037-CNS-NRN Document 40 Filed 09/14/22 USDC Colorado Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 22-cv-01037-CMA-NRN
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`ERIC PICKERSGILL,
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`Plaintiff,
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`v.
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`THE EGOTIST, LLC dba THE DENVER EGOTIST,
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`Defendant.
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`
`
`REPORT AND RECOMMENDATION ON
`DEFENDANT’S MOTION TO DISMISS (Dkt. #21)
`
`
`
`
`N. REID NEUREITER
`United States Magistrate Judge
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`Introduction
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`
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`This is a copyright lawsuit brought by a photographer, Mr. Eric Pickersgill,
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`against Defendant The Egotist, LLC d/b/a The Denver Egotist (“Defendant” or the
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`“Egotist”). Mr. Pickersgill alleges that the Egotist’s website (the “Website”), without
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`permission or license, reprinted six of his copyrighted photographs in a web post. The
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`Egotist, for its part, contends that the post, which included six large images from a
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`larger collection of Mr. Pickersgill’s photographic work, with a very small amount of
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`accompanying text, was in fact an article describing the work itself, and therefore
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`constitutes fair use of the images. The larger collection of Mr. Pickersgill’s photographic
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`work from which the images were copied is entitled “Removed.” The images show
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`people, in various poses, as if engrossed in their electronic devices, but there is no
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`electronic device in any of the subjects’ hands. Thus, the electronic devices or
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`cellphones have been “removed.”
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`This matter comes before the Court on Defendant’s Motion to Dismiss. Dkt. #19.
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`The Motion was referred by Judge Arguello on June 29, 2022. Dkt. #21. The case now
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`has been reassigned to Judge Sweeney. Mr. Pickersgill filed an opposition. Dkt. #23.
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`Defendant filed a reply. Dkt. #27. The Court heard argument on Defendant’s Motion to
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`Dismiss on August 17, 2022. Dkt. #37.
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`
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`At the hearing on the Motion to Dismiss, Mr. Pickersgill’s counsel suggested that
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`certain aspects of the representations by Defendant in its motion to dismiss were false.
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`Specifically, Pickersgill’s counsel suggested that while Defendant claimed to have
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`written the brief text accompanying the copyrighted images, in reality, the words had
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`been copied verbatim from Mr. Pickersgill’s own website describing his collection of
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`images. Thus, the notion that the text somehow constituted an original article, entitled to
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`the benefit of the fair use defense, was without merit. Based on Plaintiff’s counsel’s
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`representation, I ordered defense counsel to inquire with his client as to the source of
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`the text in the Website’s posting about Mr. Pickersgill’s images.
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`
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`On August 18, 2022, Defendant filed a statement in response to my order. See
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`Dkt. #37. In that statement, Defendant explained that the source of the text in the
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`disputed posting was a written description from YouTube of the TEDx talk by Mr.
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`Pickersgill himself about the Removed photographs. The person who created the
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`posting for the Egotist did not know who had authored the text. The Egotist merely
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`copied it from the YouTube page. Defendant disputes that the text was copied from Mr.
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`Pickersgill’s website, providing evidence from Internet Archives that the written text was
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`not on Mr. Pickersgill’s website at the time of the Egotist post. See Dkt. #38 and
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`associated exhibits.
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`Allegations of the Complaint
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`
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`Mr. Pickersgill is a full-time artist working in North Carolina. He received a Master
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`of Fine Arts degree at The University of North Carolina at Chapel Hill in 2015. He
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`received a Bachelor of Fine Arts degree with a concentration in Fine Art Photography
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`from Columbia College Chicago in 2011. In his art, Mr. Pickersgill explores the
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`psychological and social effects that cameras and their artifacts have on individuals and
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`societies as a whole. He has exhibited and presented his work internationally at
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`numerous institutions, galleries, and art fairs, including the North Carolina Museum of
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`Art, Pantheon-Sorbonne University, the Ackland Art Museum, Rick Wester Fine Art, and
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`the Pulse Art Fair Miami.
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`
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`Two copyright registrations have been asserted by Mr. Pickersgill. Copies of a
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`Certificate of Registration were attached as exhibits to the First Amended Complaint.
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`See Dkt. #18-2. Both copyright registrations consist of a group or collection of
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`photographs, with the online record stating that the 2018 Removed copyright consists of
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`“61 photographs” published in October 2018.
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`
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`On September 26, 2019, the Egotist posted about Mr. Pickersgill’s Removed
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`series of photographs. A copy of the posting is included as Exhibit 3 to the First
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`Amended Complaint. Dkt. #18-3. The posting includes six images from Mr. Pickersgill’s
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`Removed series. The reproduced images are not thumbnails, but appear to be large,
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`nearly full-screen size images, in high resolution. See id. ¶ 22.
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`3
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`
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`The text accompanying the posting is extremely limited. There is a bold,
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`capitalized, headline which reads, “PHOTOGRAPHER ERIC PICKERSGILL’S SERIES
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`‘REMOVED’ SHOWS US HOW OUR DEVICES DIVIDE US.” The post contains two
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`sentences of text:
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`Artist Pickergill’s [sic] photography series, Removed, went viral and touched
`a collectively universal nerve. He makes visible what so many have tried to
`explain about the ways personal devices alter human behavior, helping us
`relearn how to be truly connected in our device-dominated age.
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`Dkt. #18-3. The post also included the link to the YouTube page for Mr. Pickersgill’s
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`TEDx talk about his pictures.
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`
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`As the Court can tell from reviewing the Egotist article, in terms of the relative
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`space on the post occupied by the limited text, as compared to the copied Removed
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`images, the area occupied by the images far eclipses the amount of space occupied by
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`the text. A rough estimate would be that 95 percent of the post is Mr. Pickersgill’s
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`copied images and only five percent (if that) is text. As noted above, Defendant
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`acknowledges that the text was not even original to the Egotist, but instead was copied
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`from the description of Mr. Pickersgill’s TEDx talk.
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`
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`Mr. Pickersgill alleges that the post was not “posted for the purpose of criticism,
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`comment, or news reporting of the copyrighted Works or Pickersgill, but instead to drive
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`traffic to the Website.” Dkt. #18 ¶ 20. He also alleges that the copying and distribution of
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`his images by the Egotist was done in connection with the Egotist’s business, for
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`purposes of advertising and promoting Egotist’s business in the course and scope of
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`advertising and selling products and services. The Egotist contains third-party
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`commercial advertisements and Mr. Pickersgill alleges the Egotist copied and
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`distributed Pickersgill’s copyrighted photographs in connection with displaying these
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`third-party commercial advertisements. Id. ¶ 21.
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`
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`Mr. Pickersgill brings only one claim: copyright infringement. He says he has a
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`valid copyright in the images and that the Egotist copied, displayed, and distributed his
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`images without authorization in violation of 17 U.S.C. § 501. He seeks actual or
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`statutory damages, and attorney’s fees and costs.
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`Defendant’s Motion to Dismiss
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`
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`At this stage of the litigation, the Egotist does not dispute that Mr. Pickersgill has
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`a valid copyright in the disputed images or that the Egotist used the images without
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`authorization in its web posting. Instead, the Egotist argues that the Court need only
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`examine the posting to conclude that this was a legitimate news article about the
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`photographs themselves, making it entitled to claim the legal defense of “fair use.” In the
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`Egotist’s view, the fair use defense is effectively established by the very allegation in the
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`First Amended Complaint that the alleged infringement is based on “an article written by
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`the Denver Egotist specifically about Pickersgill and the ‘Removed’ series of
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`photographs.” The Egotist argues that because it is publishing a legitimate news article
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`about the photographs, and includes commentary about the photographs, it is entitled to
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`use some of the photographs to provide context for the commentary. Such use, in the
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`Egotist’s view, is fair use as a matter of law.
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`Legal Standards
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`
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`Rule 12(b)(6)
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`“To survive a motion to dismiss, a complaint must contain sufficient factual
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`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
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`v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
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`544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
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`plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
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`prongs of analysis. First, the Court identifies “the allegations in the complaint that are
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`not entitled to the assumption of truth,” that is, those allegations which are legal
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`conclusions, bare assertions, or merely conclusory. Id. at 679–81. Second, the Court
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`considers the factual allegations “to determine if they plausibly suggest an entitlement to
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`relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives
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`the motion to dismiss. Id. at 679.
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`
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`However, the Court need not accept conclusory allegations without supporting
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`factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir.
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`1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
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`complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a
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`cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
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`U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
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`recitation of the elements of a cause of action will not do.’ Nor does the complaint
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`suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
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`(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a
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`defendant’s liability, it ‘stops short of the line between possibility and plausibility of
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`‘entitlement to relief.’” Id. (citation omitted).
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`The Copyright Act and the Fair Use Defense
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`The Copyright Act (the “Act”) grants a copyright owner exclusive rights in the
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`copyrighted works. 17 U.S.C. § 106. However, the Act contains a “fair use” privilege
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`which allows others to use the copyrighted material in a reasonable manner despite the
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`lack of the owners’ consent:
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`Notwithstanding the provisions of sections 106 and 106A, the fair use of a
`copyrighted work, including such use by reproduction in copies or
`phonorecords or by any other means specified by that section, for purposes
`such as criticism, comment, news reporting, teaching (including multiple
`copies for classroom use), scholarship, or research, is not an infringement
`of copyright. In determining whether the use made of a work in any
`particular case is a fair use the factors to be considered shall include—
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`(1) the purpose and character of the use, including whether such use is of
`a commercial nature or is for nonprofit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the
`copyrighted work as a whole; and
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`(4) the effect of the use upon the potential market for or value of the
`copyrighted work.
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`17 U.S.C. § 107. Fair use is a statutory defense to copyright liability. Id. The United
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`States Supreme Court has held that fair use must be determined on a case-by-case
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`basis. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). Fair use has been
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`designated an affirmative defense. Id. at 590. Therefore, the party asserting fair use
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`bears the burden of proof. Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 918 (2d
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`Cir. 1994).
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`
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`Courts have decided Rule 12 motions on the defense of fair use when the visual
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`works at issue are attached to the pleadings and the fair use defense is readily
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`apparent. See Shell v. Devries, No. CIV. 06-cv-00318-REB, 2007 WL 324592, at *2 (D.
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`Colo. Jan. 31, 2007) (granting motion to dismiss copyright infringement claim based on
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`fair use), aff’d, No. 07-1086, 2007 WL 4269047 (10th Cir. Dec. 6, 2007); Konangataa v.
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`Am. Broadcasting Cos., Inc., No. 16-CV-7382 (LAK), 2017 WL 2684067, at *1 (S.D.N.Y.
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`June 21, 2017) (explaining a grant of a motion to dismiss based on fair use and
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`awarding attorneys’ fees to defendant news organizations).
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`
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`In the Konangataa case, the plaintiff had livestreamed a 45-minute video of his
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`partner giving birth to a child in the delivery room. The defendants were news outlets
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`that had used brief excerpts of the video in their news reports, including 22- to 30-
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`second excerpts of the video and, in one case, a mere screengrab from the video. The
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`excerpts were broadcast in connection with news reporting and social commentary
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`about the phenomenon of someone publicly streaming a life event that is traditionally
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`considered personal. The court had no trouble dismissing the case from the bench,
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`concluding that the use was squarely within the statutory protection for criticism,
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`comment, and news reporting provided by the Act. 2017 WL 2684067, at *1.
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`This said, while some courts have dismissed copyright lawsuits from the outset
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`based on an indisputable fair use defense, it is generally accepted that “[f]air use is a
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`mixed question of law and fact.” Harper & Row Publishers, Inc. v. Nation Enters., 471
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`U.S. 539, 560 (1985). As such, a “court cannot engage in the fair use inquiry until it has
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`been presented with facts relevant to evaluating the fair use factors.” Graham v. Prince,
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`265 F.Supp.3d 366, 377 (S.D.N.Y. 2017). “Due to the fact-sensitive nature of the
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`inquiry, courts generally do not address the fair use defense until the summary
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`judgment phase.” Id. See, e.g., Hill v. Public Advocate of the United States, 35 F. Supp.
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`3d 1347, 1358 (D. Colo. 2014) (denying motion to dismiss based on fair use when an
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`image from a same sex wedding was used without authorization on a political flyer).
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`Analysis
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`Purpose and Character of the Use
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`In assessing whether unauthorized use of a copyrighted image is a “fair” use, the
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`first factor to be considered is “the purpose and character of the use, including whether
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`such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C.
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`§ 107(1).
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`The central purpose of this investigation is to see . . . whether the new work
`merely supersedes the objects of the original creation, or instead adds
`something new, with a further purpose or different character, altering the
`first with new expression, meaning, or message; it asks, in other words,
`whether and to what extent the new work is “transformative.” Although such
`transformative use is not absolutely necessary for a finding of fair use, the
`goal of copyright, to promote science and the arts, is generally furthered by
`the creation of transformative works. Such works thus lie at the heart of the
`fair use doctrine’s guarantee of breathing space within the confines of
`copyright, and the more transformative the new work, the less will be the
`significance of other factors, like commercialism, that may weigh against a
`finding of fair use.
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`Campbell, 510 U.S. at 579 (internal quotations and citations omitted). Use of the
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`material for the intrinsic purpose for which it was prepared balances the weight of the
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`first factor against fair use.
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`
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`In this instance, I find little-to-nothing transformative about the “article” published
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`by the Egotist. The substantial majority of the post consists of large, high-quality, high-
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`resolution reproductions of six images from the Removed series. The brief text was
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`copied word-for-word from an internet description of the photographer’s TEDx talk. Even
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`if the limited text had been original to the Egotist, the two short sentences barely
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`constitute meaningful commentary, criticism, or news reporting. The two sentences are
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`effectively nothing more than a descriptive caption for the expropriated photographic
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`images.
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`There is clearly a spectrum of potential commentary or criticism of artwork. On
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`one end of that spectrum might be an extensive, several thousand-word New Yorker
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`review of an artist’s body of work, accompanied by a few images of the work for
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`illustrative purposes. On the other end would be reproduction of a substantial portion of
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`a photographer’s work, with the accompanying headline, “Check out these cool
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`pictures!” Plaintiff’s counsel conceded in argument that the latter would not likely
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`constitute fair use under § 107(1). In the Court’s view, the plagiarized posting in this
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`case is very close to the latter end of the spectrum.
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`
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`It is further alleged that the Egotist is a for-profit operation selling advertisements
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`to earn money. This is true of many traditional newspapers and respected news
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`websites. See Consumers Union of United States, Inc. v. Gen. Signal Corp., 724 F.2d
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`1044, 1049 (2d Cir. 1983) (explaining that “[a]lmost all newspapers, books and
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`magazines are published by commercial enterprises that seek a profit”). But if, as it
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`seems apparent, the Egotist, in connection with this posting, did not create any new
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`information or text, but merely reproduced in high resolution Mr. Pickersgill’s images for
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`the purpose of attracting eyeballs, selling advertisements, and making money without
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`adding anything meaningful or original, then the Egotist can hardly be said to be altering
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`the original creation with a “new expression, meaning, or message.” If the “general
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`calculus of copyright law” is to promote “the arts and sciences by rewarding ingenuity,
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`without stifling creativity,” Adjmi v. DLT Ent. Ltd., 97 F. Supp. 512, 530 (S.D.N.Y. 2015),
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`then the copyright equation in this case weighs heavily against the Egotist.
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`In addition, the “crux” of the distinction between commercial and noncommercial
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`use is whether “the user stands to profit from exploitation of the copyrighted material
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`without paying the customary price.” Harper & Row Publishers, Inc., 471 U.S. at 562.
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`Legitimate news outlets often license photos and videos to illustrate and add visual
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`interest to their articles. See Nicklen v. Sinclair Broad. Grp., Inc., 551 F. Supp. 3d 188,
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`196 (S.D.N.Y. 2021). It is alleged that the Egotist reproduced a substantial portion of Mr.
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`Pickersgill’s work, without paying any licensing fee, to generate income for itself and
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`without adding anything new or meaningful to the consideration of the images. None of
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`this justifies a finding of fair use.
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`
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`Finally, the Supreme Court itself has cautioned that “[t]he fact that an article
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`arguably is ‘news’ and therefore a productive use is simply one factor in a fair use
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`analysis.” Harper & Row Publishers, Inc., 471 U.S. at 561. Here, this posting was barely
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`“news” to begin with.
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` The Nature of the Copyrighted Work
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`The second factor to consider is the “nature of the copyrighted work.” 17 U.S.C. §
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`107(2). “Under this factor, the more creative a work, the more protection it should be
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`accorded from copying; correlatively, the more informational or functional the plaintiff’s
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`work, the broader should be the scope of the fair use defense.” 4 Nimmer on Copyright
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`§ 1305. “In general, fair use is more likely to be found in factual works than in fictional
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`works.” Stewart v. Abend, 495 U.S. 207, 237 (1990). “The law generally recognizes a
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`greater need to disseminate factual works than works of fiction or fantasy.” Harper &
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`Row Publishers, Inc., 471 U.S. at 563.
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`Here, Mr. Pickersgill’s images are extremely creative. Both in their conception
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`and execution, the high-contrast, black and white images are noteworthy and thought-
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`provoking. An art photographer makes creative choices about lens length, aperture, film
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`grain or sensor sensitivity, shutter speed, etc. After the image is captured, decisions are
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`made during the development process (whether on film or digital, whether in a physical
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`darkroom or using Lightroom, Photoshop, or a similar digital image editing software
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`program). In this case, the photographer conceived of these images, captured his
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`subjects without their devices, and took extraordinary pictures. This factor weighs
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`heavily in favor of copyright protection.
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`Amount and Substantiality of the Portion Used
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`The third factor I must examine is “the amount and substantiality of the portion
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`used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). “The question
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`is whether the quantity and value of the materials used are reasonable in nature to the
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`purpose of the copying.” N. Jersey Media Grp., Inc. v. Pirro, 74 F. Supp. 3d 605, 620
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`(S.D.N.Y. 2015). “In general, ‘the more of a copyrighted work that is taken, the less
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`likely the use is to be fair.’” Swatch Grp. Mgmt. Servs. v. Bloomberg L.P., 756 F.3d 73,
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`89 (2d Cir. 2014). The basic inquiry is whether “no more was taken than necessary.”
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`Campbell, 510 U.S. at 589.
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`
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`The Egotist argues that only six images from a much larger collection were
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`reproduced on its website. But these were not thumbnails—these were high resolution
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`images, each one of which took up most of the Egotist’s webpage screen (excluding the
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`ads that ran on the right side of the page). I conclude that posting six full-size, high-
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`resolution images constitutes a qualitatively substantial portion of Mr. Pickersgill’s work.
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`See Roy Export Co. v. Columbia Broad. Sys., Inc., 503 F. Supp. 1137, 1145 (S.D.N.Y.
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`1980) (even a 55-second excerpt from a one hour and twenty-nine minute Charlie
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`Chaplin film “Modern Times” could be considered qualitatively substantial for fair use
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`analysis purposes). In this case, each photograph is itself a copyrighted work. If this
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`really were an “article” commenting on the Mr. Pickersgill’s work, it was not necessary to
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`copy six of Mr. Pickersgill’s full-size high-resolution images to convey the point. The
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`comparative amount of space used for text compared to the space used to reproduce
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`the images again makes clear that the degree of copying that occurred here was
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`excessive for the purported task of discussing or commenting on the artwork.
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`Effect on the Market
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`The fourth factor focuses on “the effect of the use upon the potential market for
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`or value of the copyrighted work.” “This last factor is undoubtedly the single most
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`important element of fair use.” Harper & Row Publishers, Inc., 471 U.S. at 566. “Fair
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`use, when properly applied, is limited to copying by others which does not materially
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`impair the marketability of the work which is copied.” Id. at 566–67.
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`
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`In the mind of a reader, seeing six full-size images may well reduce interest in
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`either seeing a gallery display of the images or reduce the interest in purchasing a fine
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`art copy of the image. More importantly, to negate fair use, one need only show that if
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`the challenged use “should become widespread, it would adversely affect the potential
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`market for the copyrighted work.” Id. at 568 (quoting Sony Corp. of Am. v. Universal City
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`Studios, Inc., 464 U.S. 417, 451 (1984). If it were a widespread practice that websites
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`across the country could with impunity republish six full size, high-resolution images of
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`Mr. Pickersgill’s images, then his entire collections could be published on-line, and there
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`would be less reason for people to come to his gallery showings or purchase his fine art
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`images. This factor, at least at this early stage, weighs against a finding of fair use.
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`Conclusion
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`
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`For the above stated reasons, the Court cannot conclude at this early stage of
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`the case that Defendant has shown that its republication without authorization of Mr.
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`Pickersgill’s copyrighted images was a fair use under 17 U.S.C. § 106. Therefore, the
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`Court recommends that the Defendant’s Motion to Dismiss (Dkt. #21) be DENIED.
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`
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`NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
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`the parties have fourteen (14) days after service of this recommendation to serve
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`and file specific written objections to the above recommendation with the District
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`Judge assigned to the case. A party may respond to another party’s objections
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`within fourteen (14) days after being served with a copy. The District Judge need
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`not consider frivolous, conclusive, or general objections. A party’s failure to file
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`and serve such written, specific objections waives de novo review of the
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`recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
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`(1985), and also waives appellate review of both factual and legal questions.
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`Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
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`N. Reid. Neureiter
`United States Magistrate Judge
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`91 F.3d 1411, 1412-13 (10th Cir. 1996).
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`September 14, 2022
`Denver, Colorado
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`Dated:
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`14
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