Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`BWP MEDIA USA, INC. d/b/a PACIFIC
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`COAST NEWS and NATIONAL PHOTO
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`GROUP, LLC,
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`:
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`Defendant. :
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`:
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`----------------------------------------------------- X
`KATHERINE POLK FAILLA, District Judge:
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`v.
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`GOSSIP COP MEDIA, LLC,
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`
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`13 Civ. 7574 (KPF)
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`OPINION AND ORDER
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`
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`Plaintiff,
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`
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`Plaintiff BWP Media USA Inc. d/b/a Pacific Coast News and National
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`Photo Group, LLC (“Plaintiff” or “BWP Media”) brings this action for copyright
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`infringement against Defendant Gossip Cop Media, LLC (“Defendant” or
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`“Gossip Cop”).1 The case centers around three photographs and one video that
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`Gossip Cop posted on its website without authorization from BWP Media.
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`Gossip Cop claims that it is in the business of providing media commentary,
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`and moves to dismiss the case for failure to state a claim upon which relief can
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`be granted on the basis that the reproduction of all four images are protected
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`by the doctrine of fair use. In addition, Gossip Cop asserts that Plaintiff has
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`1
`Plaintiff initially, and in its Amended Complaint, named Abrams Research, LLC d/b/a
`Abrams Media (“Abrams”) as an additional defendant. On consent of the parties, the
`Court dismissed the claim with prejudice as against Abrams, provided that Abrams
`reserved the right to seek additional remedies. (Dkt. #17). On March 18, 2014, Abrams
`moved for attorney’s fees pursuant to 17 U.S.C. § 505 (Dkt. #21), which motion is
`denied in a separate opinion (Dkt. #41).
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`
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`USDC SDNY
` DOCUMENT
` ELECTRONICALLY FILED
` DOC #: _________________
` DATE FILED: ______________
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`January 26, 2015
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`

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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 2 of 23
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`neither obtained registration with the U.S. Copyright Office nor had its
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`application denied with respect to one of the four images. For the reasons set
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`forth in this Opinion, Defendant’s motion to dismiss is granted with respect to
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`that one image and denied with respect to the remaining three images.
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`BACKGROUND
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`A.
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`Factual Background2
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`1.
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`The Parties
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`Plaintiff BWP Media “provide[s] entertainment-related photojournalism
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`goods and services and own[s] the rights to a multitude of photographs and
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`videos featuring celebrities, which it licenses to online and print publications.”
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`(Am. Compl. ¶ 1). BWP Media obtains copyright registrations covering many of
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`these photographs and videos, and additionally has pending copyright
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`applications as to others. (Id.). BWP Media alleges that it is the legal and
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`beneficial owner of these photographs and videos, and creates or obtains the
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`photographs and videos “with the express purpose of licensing [them] to media
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`organizations.” (Id. at ¶¶ 11, 13).
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`Defendant Gossip Cop operates for profit a website, gossipcop.com,
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`which focuses on celebrity gossip news. (Am. Compl. ¶¶ 2, 21-22). Plaintiff
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`2
`The facts contained in this Opinion are drawn from the Amended Complaint (“Am.
`Compl.”) (Dkt. #13), and are taken as true for purposes of the pending motion to
`dismiss. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (when reviewing a
`complaint for failure to state a claim, the court will “assume all well-pleaded factual
`allegations to be true” (internal quotation marks omitted)).
`For convenience, Defendant’s memorandum in support of its motion to dismiss or for
`summary judgment is referred to as “Def. Br.” (Dkt. #25); Plaintiff’s opposition brief as
`“Pl. Opp.” (Dkt. #31); and Defendant’s reply brief as “Def. Reply” (Dkt. #37).
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`2
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 3 of 23
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`alleges that Gossip Cop operates its site for “the exact same commercial
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`purpose as used by similar celebrity gossip organizations.” (Id. at ¶¶ 28, 31,
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`33). Gossip Cop at times copies images in their entirety from other websites
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`without independently licensing the images from their owners, in this case
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`BWP Media. (Am. Compl. ¶ 23).
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`2.
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`The Images and Their Allegedly Infringing Uses
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`Plaintiff identifies four images that Defendant reproduced on its website.3
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`All four images are legally and beneficially owned by Plaintiff, and Defendant
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`did not receive authorization or permission before reproducing them.
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`The first image is a photograph of the actors Mila Kunis and Ashton
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`Kutcher holding between them one newspaper and three cups of coffee while
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`walking down a street. (See Am. Compl., Ex. 1 (the “Kunis/Kutcher Image”)).
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`The Amended Complaint indicates that the image is registered with the
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`registration number VA0001848281. (Id.). As reproduced on Gossip Cop’s
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`website next to a January 28, 2013 article entitled “Mila Kunis and Ashton
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`Kutcher ‘Moving to London,’ Claims Tab,” the Kunis/Kutcher Image appears
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`with the headline from The Sun, reading “AK & MK in UK,” and below that
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`“Ashton Kutcher and Mila Kunis are moving to London.” (See Def. Br., Ex. B
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`(the “Kunis/Kutcher Article”)). Below the picture of the photograph and
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`headline appears a parenthetical attribution to The Sun. (Id.). The
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`3
`The Amended Complaint alleges that this and other images appear as thumbnails in
`search and archive results as well. (See Am. Compl., Ex. 1). Neither party addresses
`whether the use in search results should be analyzed distinctly, and the question is not
`relevant to the disposition of the instant motion.
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`3
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 4 of 23
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`Kunis/Kutcher Article excerpts portions of The Sun’s article, provides a
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`contradictory quote from “a close Kunis insider,” and assigns the story the
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`lowest score, a “0,” on its scale of “Rumor” to “Real.” (Id.).
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`The second image is a photograph of the actor Robert Pattinson slumped
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`over behind the wheel of a car. (See Am. Compl., Ex. 1 (the “Pattinson
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`Image”)). The Amended Complaint indicates that the image is registered with
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`the registration number VA0001865159. (Id.). As reproduced on Gossip Cop’s
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`website next to a May 13, 2013 article entitled “Robert Pattinson, Katy Perry
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`Partying at Chateau Marmont Before His Birthday?”, the Pattinson Image
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`appears with a parenthetical attribution to the website HollywoodLife. (See
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`Def. Br., Ex. C (the “Pattinson Article”)). It includes HollywoodLife’s headline
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`(“Robert Pattinson Parties With Katy Perry Before His Birthday — PIC”), caption
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`(“Robert Pattinson looking tired leaves Chateau Marmont on May 9, 2013.”),
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`circular insert of Katy Perry’s face, and evidently enticing offer to “Click To See
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`More Pics Of Rob.” (Id.). The Pattinson Article recounts portions of
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`HollywoodLife’s article with accompanying contradictory evidence, such as
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`noting that “[t]he Chateau Marmont is NOT a ‘club,’ it’s a hotel with cool lounge
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`areas inside the lobby and outdoors,” as well as that the original source of the
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`information, PopSugar, subsequently recanted the story. (Id.). Gossip Cop
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`gives the HollywoodLife story a score of “0” on the Rumor to Real scale. (Id.).
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`The third image is a photograph of the model and actress Liberty Ross in
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`stride. (See Am. Compl., Ex. 1 (the “Ross Image”)). The Amended Complaint
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`indicates that the image is registered with the registration number
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`4
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 5 of 23
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`VA0001836367. The photograph appears on Gossip Cop’s website with a
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`watermark and parenthetical attribution to the website TMZ, side-by-side with
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`an also-watermarked close-up of the same image focused on her left hand,
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`where no wedding ring is evident. (See Def. Br., Ex. D (the “Ross Article”)). The
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`August 7, 2012 Ross Article, entitled “Rupert Sanders Wife Liberty Ross
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`Spotted Without Wedding Ring (PHOTO),” states that Ross “was spotted
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`without her wedding ring in Los Angeles on Monday.” (Id.). The unattributed
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`article, apparently authored by Gossip Cop, goes onto to offer the reader a brief
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`primer on then-recent marital difficulties experienced by Ross and Sanders,
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`and labels the article a “10” on its Rumor to Real scale. (Id.). At no point does
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`the text of the article reference any other publication or news source. (Id.).
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`The fourth image is a video of Gwyneth Paltrow on a Vespa scooter with a
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`child on the backseat, pulling into a lane ahead of an approaching school bus
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`that quickly brakes, before Ms. Paltrow is followed by her now-estranged
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`husband Chris Martin, also toting a child on the backseat of his Vespa scooter.
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`(See Am. Compl., Ex. 1 (the “Paltrow Image”)).4 The video appears with
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`“NPG.COM” in the bottom-right corner, and appears through the embedded
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`video player of TMZ, which includes a link to the latter organization’s website.
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`(Id.). The video appears on Gossip Cop’s website beneath a brief September 9,
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`2013 article entitled “Gwyneth Paltrow Cuts Off School Bus in Vespa Scooter
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`4
`The Amended Complaint and the Defendant’s Brief include only a still image of the
`video, but its full contents remain widely available, including on Defendant’s website.
`See Daniel Gates, Gwyneth Paltrow Cuts Off School Bus in Vespa Scooter (VIDEO) (Sept.
`9, 2013, 2:01 PM), http://www.gossipcop.com/gwyneth-paltrow-scooter-video-school-
`bus-vespa/.
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`5
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 6 of 23
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`(VIDEO).” (See Def. Br., Ex. E (the “Paltrow Article”)). The unattributed
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`Paltrow Article, apparently authored by Gossip Cop, describes the contents of
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`the video, but mentions no other news organizations and does not feature its
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`traditional Rumor to Real scale. (Id.). The Amended Complaint indicates that
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`a copyright application was filed on September 10, 2013, shortly prior to the
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`Complaint in the instant litigation, with the application number 1-991548211
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`(Am. Compl., Ex. 1), but that the application had not been either accepted or
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`rejected as of the filing of Plaintiff’s opposition brief (Pl. Opp. 2).5
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`B.
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`Procedural History
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`
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`Plaintiff filed its initial Complaint on October 25, 2013. (Dkt. #1). In lieu
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`of filing a response, and in accordance with this Court’s Individual Rules of
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`Practice, Defendant filed a letter requesting a pre-motion conference for its
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`anticipated motion to dismiss. (Dkt. #11). The Court denied the request with
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`leave to renew in order to first allow Plaintiff to file its anticipated Amended
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`Complaint, which it did on February 3, 2013. (Dkt. #13). As agreed to at the
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`conference of March 4, 2014, Defendant filed its motion to dismiss on March
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`21, 2014, arguing that all of the images were protected by the “fair use”
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`doctrine, and additionally that Plaintiffs could not bring a claim for
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`infringement of the Paltrow Image because their application with the Copyright
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`5
`A search of the U.S. Copyright’s registration records conducted at the time of
`publication did not turn up a registration record for the Paltrow Image. See Public
`Catalog Search, U.S. Copyright Office, http://cocatalog.loc.gov/cgi-
`bin/Pwebrecon.cgi?Search_Arg=National+Photo+Group&Search_Code=NALL&PID=tkXm
`AhbkK7UsRr_KvYzwEPz2XSnUP&SEQ=20150126141709&CNT=25&HIST=1 (last
`visited Jan. 26, 2015).
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`6
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 7 of 23
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`Office was still pending. (Dkt. #24). Plaintiff filed its brief in opposition on
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`April 28, 2014 (Dkt. #29), and the briefing was complete upon the filing of
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`Defendant’s reply brief on May 16, 2014 (Dkt. #37). The Court now considers
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`the motion to dismiss.
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`A.
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`The Standard for a Motion to Dismiss
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`DISCUSSION
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`When considering a motion to dismiss for failure to state a claim, a court
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`should “draw all reasonable inferences in Plaintiff[’s] favor, assume all well-
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`pleaded factual allegations to be true, and determine whether they plausibly
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`give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98,
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`104 (2d Cir. 2011) (internal quotation marks omitted); see also Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint
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`must contain sufficient factual matter, accepted as true, to state a claim to
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`relief that is plausible on its face.” (internal quotation marks omitted)). A
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`plaintiff is entitled to relief if she alleges “enough facts to state a claim to relief
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`that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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`(2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007)
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`(“While Twombly does not require heightened fact pleading of specifics, it does
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`require enough facts to ‘nudge [plaintiff’s] claims across the line from
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`conceivable to plausible.’” (quoting Twombly, 550 U.S. at 570)). “Where a
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`complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
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`it ‘stops short of the line between possibility and plausibility of entitlement to
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`relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 8 of 23
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`“In considering a motion to dismiss for failure to state a claim pursuant
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`to Rule 12(b)(6), a district court may consider the facts alleged in the
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`complaint, documents attached to the complaint as exhibits, and documents
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`incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622
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`F.3d 104, 111 (2d Cir. 2010). “Even where a document is not incorporated by
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`reference, the court may nevertheless consider it where the complaint ‘relies
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`heavily upon its terms and effect,’ which renders the document ‘integral’ to the
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`complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
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`(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
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`Cir. 1995) (per curiam)). “[A] plaintiff’s reliance on the terms and effects of a
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`document in drafting the complaint is a necessary prerequisite to the court’s
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`consideration of the document on a dismissal motion; mere notice or
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`possession is not enough.” Id. (emphasis in original). Because Plaintiff relies
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`upon Defendant’s allegedly infringing webpages, and includes screen captures
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`of them, in the Amended Complaint (see Am. Compl., Ex. 1), the Court
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`incorporates these documents — displayed in greater detail in Exhibits B
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`through E of Defendant’s opening brief — by reference.
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`B.
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`Application
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`1.
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`The Motion to Dismiss Is Granted with Respect to the
`Paltrow Image
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`Although registration is not required to obtain copyright protection, see
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`17 U.S.C. § 408(a), it is a prerequisite to bringing an infringement action in
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`federal court, see id. § 411(a). But see Reed Elsevier, Inc. v. Muchnick, 559 U.S.
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`154, 171 (2010) (“We … decline to address whether § 411(a)’s registration
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 9 of 23
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`requirement is a mandatory precondition to suit that … district courts may or
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`should enforce sua sponte by dismissing copyright infringement claims
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`involving unregistered works.”). As Plaintiff points out, the Second Circuit has
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`not decided whether a pending application for copyright satisfies the
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`registration requirement of § 411(a). See Psihoyos v. John Wiley & Sons, Inc.,
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`748 F.3d 120, 125 (2d Cir. 2014) (“[T]he Federal Courts of Appeals are divided
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`over whether a pending application satisfies § 411(a)’s requirement of copyright
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`registration as a precondition to instituting an infringement action.… We need
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`not resolve the dispute or otherwise embroil ourselves in this circuit split.”
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`(internal citations omitted)).
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`However, the most exhaustive recent analysis within this District
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`concluded that “Courts in this Circuit have … required that a plaintiff either
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`hold a valid copyright registration outright or have applied and been refused a
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`registration prior to filing a civil claim, both before and after Reed Elsevier. A
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`pending application does not suffice.” Muench Photography, Inc. v. Houghton
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`Mifflin Harcourt Pub. Co., No. 09 Civ. 2669 (LAP), 2012 WL 1021535, at *5
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`(S.D.N.Y. Mar. 26, 2012). It has since been noted that “[c]ourts in this district
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`generally hold that a copyright registration is required, and that a pending
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`application will not do.” BWP Media USA Inc. v. Hollywood Fan Sites, LLC,
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`No. 14 Civ. 121 (JPO), 2014 WL 6077247, at *5 n.6 (S.D.N.Y. Nov. 14, 2014);
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`accord Int’l Diamond Importers, Inc. v. Oriental Gemco (N.Y.), Inc., No. 14 Civ.
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`3506 (SAS), 2014 WL 6682622, at *11 (S.D.N.Y. Nov. 24, 2014) (“I agree that an
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`application is not sufficient to bring an infringement action[.]”); Accurate
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 10 of 23
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`Grading Quality Assur., Inc. v. Thorpe, No. 12 Civ. 1343 (ALC), 2013 WL
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`1234836, at *7 (S.D.N.Y. Mar. 26, 2013) (same). Plaintiff provides only a
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`single example to the contrary. (See Pl. Opp. 17 (citing Well-Made Toy Mfg.
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`Corp. v. Goffa Int’l Corp., 210 F. Supp. 2d 147, 157 (E.D.N.Y. 2002))). The
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`Court agrees with the overwhelming majority of courts in this District and
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`Circuit that a pending application does not constitute “registration” sufficient
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`to allow suit for copyright infringement under 17 U.S.C. § 411(a).
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`Accordingly, since Plaintiff’s application for registration of the Paltrow
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`Image was pending as of the filing of the Complaint, the Amended Complaint,
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`and this Opinion, the motion to dismiss must be granted with respect to the
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`Paltrow Image. The Court need not at this time address the question of
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`whether Plaintiff should be allowed to amend its complaint to include the
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`Paltrow Image once the Copyright Office grants or rejects the application for
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`registration.
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`2.
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`The Motion to Dismiss Is Denied with Respect to the Other
`Images
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`Gossip Cop moves to dismiss the remainder of the Amended Complaint
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`on the basis that the defense of fair use prevents any claim of infringement.
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`Based upon the allegations in the Amended Complaint and the materials
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`incorporated by reference therein, the Court is unable to conclude that Plaintiff
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`fails to state a claim upon which relief can be granted. The Court declines to
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`find that fair use constitutes a complete defense at this stage.
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`The Copyright Act is intended “[t]o promote the Progress of Science and
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`useful Arts,” U.S. Const. art. I, § 8, cl. 8, “by granting authors a limited
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 11 of 23
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`monopoly over (and thus the opportunity to profit from) the dissemination of
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`their original works of authorship,” Authors Guild, Inc. v. HathiTrust, 755 F.3d
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`87, 95 (2d Cir. 2014). But there are also limits upon creators’ control over
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`their own works, in particular “the doctrine of ‘fair use,’ which allows the
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`public to draw upon copyrighted materials without the permission of the
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`copyright holder in certain circumstances.” Id. “[T]he fair use determination is
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`an open-ended and context-sensitive inquiry,” Cariou v. Prince, 714 F.3d 694,
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`705 (2d Cir. 2013), but Congress has provided four nonexclusive factors that
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`inform whether a given use is fair:
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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.
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`
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`Although “[t]he determination of fair use is a mixed question of fact and
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`law,” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 81 (2d Cir.
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`2014), the Second Circuit has endorsed the resolution of other copyright
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`questions at the pleadings stage by analyzing the complaint and incorporating
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`by reference the documents referred to therein, see Peter F. Gaito Architecture,
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`LLC v. Simone Dev. Corp., 602 F.3d 57, 63-65 (2d Cir. 2010) (analyzing a
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`dismissal based upon lack of substantial similarity between copyrighted and
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`11
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 12 of 23
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`allegedly infringing work). And the Second Circuit has approvingly cited the
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`Seventh Circuit’s discussion of the fair use inquiry at the motion to dismiss
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`stage. See Cariou, 714 F.3d at 707 (discussing Brownmark Films, LLC v.
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`Comedy Partners, 682 F.3d 687 (7th Cir. 2012)). The Brownmark court
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`determined that in certain circumstances, “the only two pieces of evidence
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`needed to decide the question of fair use … are the original version” and the
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`allegedly infringing work, and found that this analysis could be conducted
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`pursuant to a motion to dismiss under Rule 12(b)(6) or 12(c), without
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`converting the motion into one for summary judgment pursuant to Rule 12(d).
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`Brownmark, 682 F.3d at 690. While the Second Circuit has noted in the
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`context of the Lanham Act that “[b]ecause fair use is an affirmative defense, it
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`often requires consideration of facts outside of the complaint and thus is
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`inappropriate to resolve on a motion to dismiss,” it recognized that
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`“[a]ffirmative defenses may be adjudicated at this stage in the litigation,
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`however, where the facts necessary to establish the defense are evident on the
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`face of the complaint.” Kelly-Brown v. Winfrey, 717 F.3d 295, 308 (2d Cir.
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`2013). The Court thus finds that it is possible to resolve the fair use inquiry on
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`a motion to dismiss under certain circumstances, but observes that there is a
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`dearth of cases granting such a motion. See, e.g., M. Shanken Commc’ns, Inc.
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`v. Cigar500.com, No. 07 Civ. 7371 (JGK), 2008 WL 2696168, at *10 (S.D.N.Y.
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`July 7, 2008) (noting that a similarly situated defendant could not identify “any
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`cases in this Circuit that have granted a motion to dismiss on the grounds of
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`fair use”). Nonetheless, given the possibility, however slim, of resolution at this
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`12
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 13 of 23
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`stage, the Court will undertake a review of the three remaining images in light
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`of the fair use factors.
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`a.
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`The Purpose Factor Weighs in Defendant’s Favor with
`Respect to the Kunis/Kutcher and Pattinson Images, and
`in Plaintiff’s Favor with Respect to the Ross Image
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`The first factor in the fair use inquiry, which has been described as “[t]he
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`heart of the fair use inquiry,” Cariou, 714 F.3d at 705 (alterations in original)
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`(quoting Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006)) (internal quotation
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`marks omitted), asks in part whether the new work “merely ‘supersede[s] the
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`objects’ of the original creation, or instead adds something new, with a further
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`purpose or different character, altering the first with new expression, meaning,
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`or message; it asks, in other words, whether and to what extent the new work
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`is ‘transformative,’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579
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`(1994) (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (Story,
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`J.)); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111
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`(1990)). The Second Circuit has recognized, however, that
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`[i]n the context of news reporting and analogous
`activities,… the need to convey information to the public
`accurately may in some instances make it desirable and
`consonant with copyright law for a defendant to
`faithfully reproduce an original work without alteration.
`Courts often
`find such uses transformative by
`emphasizing the altered purpose or context of the work,
`as evidenced by surrounding commentary or criticism.
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`Swatch, 756 F.3d at 84. Yet the Second Circuit has specifically rejected the
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`contention that commentary is necessary to the fair use defense, holding that
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`“[t]he law imposes no requirement that a work comment on the original or its
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`author in order to be considered transformative.” Cariou, 714 F.3d at 706.
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`13
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 14 of 23
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`“Instead,… to qualify as a fair use, a new work generally must alter the original
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`with ‘new expression, meaning, or message.’” Id. (quoting Campbell, 510 U.S.
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`at 579).
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`The commercial nature of the secondary use is also relevant; “[t]he
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`greater the private economic rewards reaped by the secondary user (to the
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`exclusion of broader public benefits), the more likely the first factor will favor
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`the copyright holder and the less likely the use will be considered fair.”
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`Swatch, 756 F.3d at 83 (alteration in original) (quoting Am. Geophysical Union
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`v. Texaco Inc., 60 F.3d 913, 922 (2d Cir. 1994)) (internal quotation marks
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`omitted); accord Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,
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`562 (1985) (“The fact that a publication was commercial as opposed to
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`nonprofit is a separate factor that tends to weigh against a finding of fair use.”).
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`On the other hand, “purposes such as criticism, comment, [and] news
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`reporting” are set forth in the Copyright Act as prototypical examples of fair
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`use, 17 U.S.C. § 107, and the Second Circuit has “recognized that ‘[a]lmost all
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`newspapers, books and magazines are published by commercial enterprises
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`that seek a profit.’” Swatch, 756 F.3d at 83 (alteration in original) (quoting
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`Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1049 (2d Cir.
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`1983)). Accordingly, though a work may be commercial in nature, where it is
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`found to be transformative courts “do not place much significance on that fact
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`due to the transformative nature of the work.” Cariou, 714 F.3d at 708.
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`Defendant’s use of the copyrighted work is undoubtedly commercial in
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`nature. Plaintiff adequately pleads as much (see Am. Compl. ¶¶ 22, 24, 28-
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 15 of 23
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`30), and Defendant does not contest that fact; rather, it simply urges that “the
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`fact that Gossip Cop is a for-profit entity should be afforded little-to-no weight
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`or significance by this Court” (Def. Br. 20). Yet “[t]he crux of the
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`profit/nonprofit distinction is not whether the sole motive of the use is
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`monetary gain but whether the user stands to profit from exploitation of the
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`copyrighted material without paying the customary price.” Harper & Row, 471
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`U.S. at 562. The question of Gossip Cop’s motive is a factual one, making it
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`inappropriate for dismissal at this stage. However, there is certainly enough in
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`the complaint to suggest that at least some of the uses — and perhaps Gossip
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`Cop’s business model as a whole — is meant to allow Gossip Cop to till the
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`same ground as other publications without paying the customary licensing
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`fee.6 On the other hand, the heart of the inquiry on the first factor is whether
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`the use is transformative, not whether it is profitable. See Cariou, 714 F.3d at
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`708.
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`BWP Media asserts that Gossip Cop is simply another tabloid engaged in
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`precisely the same kind of celebrity gossip reporting as the outlets to which
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`BWP Media licenses its images. This allegation, normally automatically
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`credited, is somewhat belied by the nature of the Gossip Cop articles that are
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`incorporated into the Amended Complaint by reference. Although Gossip Cop
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`
`6
`This inquiry is at times regarded as questioning the alleged infringer’s good faith. As
`the Second Circuit has noted, “[m]uch has been written about whether good faith was
`de-emphasized by the advent of Campbell or essentially written out of the first part of
`the fair-use test.” Blanch, 467 F.3d at 255. There is more in the Amended Complaint
`to suggest bad faith than was present in Blanch, but as the Blanch court observed, to
`the extent the bad faith element is still part of the inquiry, it boils down to whether the
`use was otherwise fair in the absence of permission. Id. at 256.
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 16 of 23
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`is, broadly speaking, in the same celebrity journalism business as other
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`outlets, the Kunis/Kutcher Image and the Pattinson Image are utilized in a
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`different context on Gossip Cop’s website than in the publications from which
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`the images are copied. Gossip Cop makes clear, including by copying the
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`headlines that ran with the images, that the images were used to illustrate or
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`bolster the stories run by The Sun and HollywoodLife, and proceeds to attack
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`the factual bases of these stories.7 Such “surrounding commentary or
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`criticism” clearly militates for a finding of transformative use. Swatch, 756
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`F.3d at 84. And while Gossip Cop may be a far cry from Woodward and
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`Bernstein, “the fact that the story is admittedly on the tawdry side of the news
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`ledger does not make it any less of a fair use.” Nunez v. Caribbean Int’l News
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`Corp., 235 F.3d 18, 22-23 (1st Cir. 2000).
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`On the other hand, the Ross Image contains no surrounding commentary
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`or criticism of the underlying source of the image, and the Ross Article makes
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`no mention whatsoever of another publication. It is not enough for an image to
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`be used in the course of news reporting; the use must be transformative. See
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`Harper & Row, 471 U.S. at 561 (“The fact that an article arguably is ‘news’ and
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`therefore a productive use is simply one factor in a fair use analysis.”).
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`Similarly, the mere appending of the Rumor to Real scale to a story that uses
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`the image for the exact same purpose as its original location does not
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`
`7
`Plaintiff argues that the images do not perfectly illustrate the content of Gossip Cop’s
`stories. (See Am. Compl. ¶¶ 15-16). While this argument may be a valid critique of the
`journalistic savvy of the outlets to which BWP Media did license its photographs, it is
`irrelevant to the question of whether reproduction of the original publishers’ headlines
`and cover photographs helped provide context to Gossip Cop’s criticism of those outlets.
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 17 of 23
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`transform it from celebrity journalism to commentary on celebrity journalism.
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`Plaintiff’s citation to Mathieson v. Associated Press, No. 90 Civ. 6945 (LMM),
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`1992 WL 164447 (S.D.N.Y. June 25, 1992) (Pl. Opp. 7), is inapposite. Whereas
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`in that case the Associated Press copied a photo from a business promotion
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`brochure to illustrate a news story, id. at *3, in this case Gossip Cop
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`reproduced the photo in precisely the same context in which it was originally
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`deployed. Taking the allegations in the Amended Complaint as true, the Court
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`must conclude that the first fair use factor weighs in Defendant’s favor with
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`regard to the Kunis/Kutcher and Pattinson Images, and in Plaintiff’s favor with
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`regard to the Ross Image.
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`b.
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`The Nature of the Copyrighted Work Factor Is Mixed
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`The second fair use factor is “the nature of the copyrighted work.” 17
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`U.S.C. § 107. The Supreme Court has interpreted this factor to incorporate
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`two primary inquiries: whether the work is factual or fictional, and whether the
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`work is unpublished. The Second Circuit has elaborated, calling for a
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`consideration of “(1) whether the work is expressive or creative, ... with a
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`greater leeway being allowed to a claim of fair use where the work is factual or
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`informational, and (2) whether the work is published or unpublished, with the
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`scope for fair use involving unpublished works being considerably narrower.”
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`Cariou, 714 F.3d at 709-10 (alterations in original) (quoting Blanch, 467 F.3d at
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`256) (internal citation and quotation marks omitted). Regarding the former,
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`“[t]he law generally recognizes a greater need to disseminate factual works than
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`works of fiction or fantasy.” Harper & Row, 471 U.S. at 563; accord Authors
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`Case 1:13-cv-07574-KPF Document 40 Filed 01/26/15 Page 18 of 23
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`Guild, 755 F.3d at 96 (“The second factor considers whether the copyrighted
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`work is ‘of the creative or instructive type that the copyright laws value and
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`seek to foster.’” (quoting Leval, supra, at 1123)). Regarding the latter, “[t]he
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`fact that a work is unpublished is a critical element of its ‘nature