Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 1 of 14
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------------- X
` JANA ROMANOVA,
`:
`:
`:
`:
` :
`:
`:
`:
`Defendant. :
`-------------------------------------------------------------- X
`VALERIE CAPRONI, United States District Judge:
`
`Plaintiff,
`
`-against-
`
`4/24/2023
`
`22-CV-8948 (VEC)
`
`OPINION AND ORDER
`
` AMILUS INC.,
`
`Plaintiff Jana Romanova (“Plaintiff”) sued Amilus Inc. (“Defendant”) for willful
`
`copyright infringement under Section 501 of the Copyright Act, 17 U.S.C. § 501. Compl. ¶¶ 46–
`
`54, Dkt. 1. After Defendant failed to appear, Plaintiff moved for default judgment. See Dkts.
`
`17–20. After a show-cause hearing, the Court ordered Plaintiff to show cause why this case
`
`should not be dismissed under the fair use exception of the Copyright Act, 17 U.S.C. § 107. See
`
`Dkt. 28. As detailed below, because Plaintiff has failed to show why Defendant’s use of
`
`Plaintiff’s photograph is not protected by the fair use exception, the case is DISMISSED.
`
`1
`
`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #:
`
`
`
`DATE FILED:
`
`
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 2 of 14
`
`BACKGROUND1
`
`Plaintiff is a professional photographer. Compl. ¶ 5.2 Defendant is the registered owner
`
`of the website www.ap-ai.com (the “Website”), which “sells merchandise to the public.” Id. ¶¶
`
`3, 6, 18–20. Plaintiff owns the copyright to a photograph of a woman with a snake wrapped
`
`around her left wrist and another snake wrapped around a portion of her torso and arm (the
`
`“Photo”). Id. ¶¶ 21–23; id., Ex. 1 (Dkt. 1-1). Plaintiff alleges that Defendant infringed her
`
`copyright by posting the Photo to the Website. Compl. ¶¶ 24–28; id., Ex. 2 (Dkt. 1-2).
`
`Plaintiff alleges that she registered the Photo with the United States Copyright Office (the
`
`“USCO”) on October 3, 2017, under Registration No. VA 2-071-921. Compl. ¶ 23. Plaintiff
`
`claims that she originally licensed the Photo for use in a National Geographic article about
`
`persons in Russia who owned snakes as household pets. See Pl. Decl. ¶ 12, Dkt. 31. “At its
`
`heart, the Photograph is a display of snakes as domesticated pets with their owner in Russia.” Pl.
`
`Mem. at 5, Dkt. 30. On December 26, 2019, Plaintiff alleges that she observed the Photo in an
`
`The facts are based on the allegations contained in the Complaint, materials attached to the Complaint, and
`1
`Plaintiff’s filings in response to the Court’s order to show cause (Dkts. 30–31). In light of Defendant’s default, see
`Dkt. 12, Plaintiff’s properly pleaded allegations, except those relating to damages, are accepted as true. See Goga
`v. Zim Am. Integrated Shipping Servs. Co., 2009 WL 320602, *1 (S.D.N.Y. Feb. 10, 2009) (citing Cotton v.
`Slone, 4 F.3d 176, 181 (2d Cir. 1993)). The Court considers Plaintiff’s descriptions and exhibits purporting to
`demonstrate Defendant’s alleged infringing use of the Photo in toto; the Complaint references Defendant’s use
`repeatedly, provides screenshots from it, and it is critical to Plaintiff’s Complaint. See Compl. ¶¶ 24–26, 30, 50;
`id., Ex. 2 (Dkt. 1-2); Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (“[A complaint] is
`deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated
`in it by reference. . . . Even where a document is not incorporated by reference, the court may nevertheless
`consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the
`complaint.” (quotations omitted)).
`
`The Court notes that the Complaint alleges that Plaintiff is a citizen of The Netherlands, Compl. ¶ 5, but in
`2
`the Declaration in Support of Plaintiff’s Response to the Court’s Order to Show Cause, Plaintiff claims to be a
`citizen of Russia, see Pl. Decl. ¶ 1, Dkt. 31.
`
`2
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 3 of 14
`
`article on the Website titled “Trending: Dogs, Cats . . . and Other Pets, to Start Off 2018” (the
`
`“Article”). Compl. ¶¶ 24–25.3
`
`On October 20, 2022, Plaintiff filed the Complaint. Dkt. 1. After Defendant failed to
`
`appear or otherwise respond to the Complaint, Plaintiff initiated default judgment proceedings.
`
`See Dkt. 23. On January 27, 2023, this Court held a show cause hearing on Plaintiff’s motion;
`
`Defendant did not appear. See id.; Order, Dkt. 28. Following the hearing, the Court ordered
`
`Plaintiff to show cause why Defendant’s alleged infringing use of the Photograph fell outside the
`
`fair-use exception. See Order, Dkt. 28.4 On February 13, 2023, Plaintiff filed a memorandum of
`
`law and a declaration in response to the Court’s order. Dkts. 30–31 (“Pl. Mem.” and “Pl. Decl.”,
`
`respectively).
`
`DISCUSSION
`
`A Clerk’s entry of default against a defendant for failure to appear does not automatically
`
`entitle Plaintiff to default judgment. See Goga v. Zim Am. Integrated Shipping Servs. Co., 2009
`
`WL 320602, *2 (S.D.N.Y. Feb. 10, 2009) (quotation omitted). Before granting default
`
`judgment, the Court must be satisfied that the Complaint states a claim upon which relief can be
`
`granted. McGlynn v. Cools, Inc., 2020 WL 6561658, at *5 (S.D.N.Y. July 1, 2020) (citing Au
`
`Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)), report and recommendation
`
`adopted, 2020 WL 5525745 (S.D.N.Y. Sept. 15, 2020). Accordingly, taking Plaintiff’s well-
`
`pleaded allegations as true, except those relating to damages, and Plaintiff’s additional
`
`uncontroverted factual proffers in support of her motion as true, Plaintiff still must state a claim
`
`
`Plaintiff alleges that the infringing use can be found at the URL
`3
`https://www.aiap.com/publications/article/22624/trending-dogs-cats-and-other-pets-to-start.html. Compl. ¶ 25.
`
`Plaintiff’s counsel was also asked to provide supporting documentation for Plaintiff’s licensing use of the
`
`Photo in the event that the Court were to find Plaintiff entitled to any damages. See Order, Dkt. 28.
`
` 4
`
`
`
`3
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 4 of 14
`
`for relief. See Fed. R. Civ. P. 55(b); Fed. R. Civ. P. 8(b)(6); Yahoo! Inc. v. XYZ Cos., 872 F.
`
`Supp. 2d 300, 303 (S.D.N.Y. 2011).
`
`Section 106 of the Copyright Act grants copyright holders certain exclusive rights over
`
`their original works, including the right “to reproduce the copyrighted work in copies or
`
`phonorecords” and the right “to display the copyrighted work publicly.” 17 U.S.C. § 106. The
`
`fair use doctrine is a statutory exception to copyright infringement. Bill Graham Archives v.
`
`Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006). The doctrine “allows for new
`
`transformative works that further the public discourse and the free exchange of ideas in order to
`
`promote science and the arts.” Baraban v. Time Warner, Inc., 2000 WL 358375, at *2 (S.D.N.Y.
`
`Apr. 6, 2000). As codified in the Copyright Act, “the fair use of a copyrighted work . . . for
`
`purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research, is
`
`not an infringement of copyright.” 17 U.S.C. § 107.
`
`Although courts generally wait until summary judgement to address fair use, Graham v.
`
`Prince, 265 F. Supp. 3d 366, 377 (S.D.N.Y. 2017), dismissal of a copyright infringement claim
`
`is warranted where fair use is clearly established on the face of the complaint, TCA Television
`
`Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016).
`
`I.
`
`Standard of Review
`
`To survive dismissal, “a complaint must allege sufficient facts, taken as true, to state a
`
`plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013)
`
`(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). “[A] complaint does not need
`
`to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an
`
`entitlement to relief above the speculative level.” Keiler v. Harlequin Enters. Ltd., 751 F.3d 64,
`
`70 (2d Cir. 2014). The Court accepts all factual allegations in the complaint as true and draws all
`
`
`
`4
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 5 of 14
`
`reasonable inferences in the light most favorable to the plaintiff. Gibbons v. Malone, 703 F.3d
`
`595, 599 (2d Cir. 2013). The Court is not, however, “bound to accept as true a legal conclusion
`
`couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
`
`550 U.S. at 555). The Court may also consider “facts stated on the face of the complaint, . . .
`
`documents appended to the complaint or incorporated in the complaint by reference, and . . .
`
`matters of which judicial notice may be taken.” Prince, 265 F. Supp. 3d at 376 (quotation
`
`omitted); see also supra note 1. Assuming without deciding that Plaintiff possesses the
`
`copyright and that Defendant’s use of the Photo was unauthorized, if Defendant’s use falls
`
`within the fair use doctrine, then Plaintiff has failed to state a claim.
`
`II.
`
`Fair Use Analysis
`
`Fair use is a “mixed question of fact and law,” necessitating “an open-ended and context-
`
`sensitive inquiry.” Prince, 265 F. Supp. 3d at 376 (quotation omitted). To determine whether a
`
`particular use is fair use, courts engage in a case-by-case evaluation using four statutory factors
`
`in light of the purposes of copyright. Bill Graham Archives, 448 F.3d at 608. The factors to be
`
`considered include —
`
`
`
`
`
`
`
`(1) the purpose and character of the use, including whether such use is of a
`commercial nature or is for nonprofit educational purposes;
`
`(2) the nature of the copyrighted work;
`
`(3) the amount and substantiality of the portion used in relation to the copyrighted
`work as a whole; and
`
`(4) the effect of the use upon the potential market for or value of the copyrighted
`work.
`
`
`17 U.S.C. § 107.
`
`
`
`5
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 6 of 14
`
`A. Purpose and Character
`
` The heart of the fair use inquiry is the purpose and character of the use. Blanch v. Koons,
`
`467 F.3d 244, 251 (2d Cir. 2006). It includes two considerations: whether the use is
`
`transformative, see Bill Graham Archives, 448 F.3d at 608; and whether the “use is of a
`
`commercial nature or is for nonprofit educational purposes,” 17 U.S.C. § 107(1). “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.” Campbell v. Acuff-Rose Music,
`
`Inc., 510 U.S. 569, 579 (1994). Although a court must weigh all of the factors, a use’s
`
`“transformativeness” is most important and “has a significant impact on the remainder of the fair
`
`use inquiry.” Prince, 265 F. Supp. 3d at 380.
`
`1. Transformative
`
`To determine whether the secondary use is transformative, the “question is 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.” Bill Graham Archives, 448 F.3d at 608 (quotation omitted); see Authors Guild v.
`
`Google, Inc., 804 F.3d 202, 214 (2d Cir. 2015) (“[A] transformative use is one that
`
`communicates something new and different from the original or expands its utility, thus serving
`
`copyright’s overall objective of contributing to public knowledge.”). A secondary use “can be
`
`transformative in function or purpose [even] without altering or actually adding to the original
`
`work.” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014)
`
`(quotation omitted).
`
`Courts have determined whether a work is transformative at this stage of litigation by
`
`making a side-by-side comparison of the original work and the allegedly infringing use. See,
`
`
`
`6
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 7 of 14
`
`e.g., Swatch Grp., 756 F.3d at 86 (affirming the district court’s pre-discovery fair use ruling,
`
`noting that the “discovery [plaintiff] seeks would not alter our analysis”); Lombardo v. Dr. Seuss
`
`Enters., 279 F. Supp. 3d 497, 505 (S.D.N.Y. 2017), aff’d, 729 F. App’x 131 (2d Cir. 2018)
`
`(“[A]lthough discovery might yield additional information . . . , such information is unnecessary
`
`to resolve the fair use issue; all that is needed is the parties’ pleadings, copies of Grinch and the
`
`Play, and the relevant case law.”)
`
`Plaintiff attached as Exhibit 1 to her declaration a PDF printout of the authorized
`
`publication of the Photo. See Pl. Decl., Ex. 1. According to Plaintiff, the Photo depicts Elizaveta
`
`Lavrienko “with a corn snake intertwined on [her] front torso and a ball python wrapped around
`
`her left hand.” Pl. Decl. ¶ 9. Plaintiff claims that she authorized National Geographic to use the
`
`Photo in an article titled “Intimate Photos of People and Their Beloved Pet Snakes.” Id. ¶ 12.
`
`Plaintiff’s Photo “was intended to showcase persons in [Plaintiff’s] home country of Russia that
`
`kept snakes as pets, specifically to capture pet snakes in common environments that are more
`
`associated with mainstream domesticated animals.” Id. ¶ 14. The National Geographic article
`
`did more than just feature the Photo; Plaintiff and her photographs of Ms. Lavrienko appeared to
`
`form the entire subject of the article; Plaintiff was quoted in the article discussing the genesis of
`
`her interest in photographing animals that are not typically kept as pets. See id.; Pl. Decl., Ex. 1.
`
`Plaintiff attached as Exhibit 2 the alleged infringing use of the Photo by Defendant. See
`
`Pl. Decl., Ex. 2. The Article, titled “Trending: Dogs, Cats . . . and Other Pets to Start Off 2018,”
`
`concerns “the ever-increasing amount of pet photography” circulating online. See id. The
`
`Article aggregates a collection of ten photographs, including: a grassy field full of dogs in
`
`motion at a purported no-kill dog shelter in Costa Rica; an elderly man lovingly head-butting his
`
`orange tabby; and three felines photoshopped by a graphic designer to recreate famous album
`
`
`
`7
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 8 of 14
`
`covers. See id. Ninth on the list is Plaintiff’s copyrighted photo of a woman standing
`
`comfortably erect within the grip of her pet snakes. See id.
`
`Plaintiff argues that the Article is not transformative because it used Plaintiff’s photo as
`
`an illustrative device, see Pl. Mem. at 4 (collecting cases), and did not “communicate[]
`
`something new and different from the original or expand[] its utility,” id. at 5–6 (quoting Hunley
`
`v. BuzzFeed, Inc., 2021 WL 4482101, *3 (S.D.N.Y. Sept. 30, 2021)). But the instant case is
`
`distinguishable from the cases on which Plaintiff relies. For example, the court in McGucken v.
`
`Newsweek LLC, 464 F. Supp. 3d 594 (S.D.N.Y. 2020), in a partial denial of the defendant’s
`
`motion to dismiss, found that the defendant failed to prove fair use of a photograph that the
`
`plaintiff had posted on Instagram and that defendant used, without permission, in an article to
`
`illustrate the same phenomena that was the essence of the Instagram post — the pooling of water
`
`to form an ephemeral lake in Death Valley. See id. at 606. Here, by contrast, the Article focuses
`
`on the overall trend of pet photography online, not the trend of humans adopting snakes as
`
`domestic pets. See Pl. Decl., Ex. 2. In that way, Defendant’s use “communicates something new
`
`and different from the original or expands its utility.” Hunley, 2021 WL 4482101, at *3. After
`
`comparing the Photo with Defendant’s use on the Website, the Court finds that Defendant’s use
`
`was transformative.
`
`2. Commercial Nature
`
`In evaluating the purpose and character of the use, the Court must also consider “whether
`
`such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1).
`
`“The commercial/nonprofit dichotomy concerns the unfairness that arises when a secondary user
`
`makes unauthorized use of copyrighted material to capture significant revenues as a direct
`
`consequence of copying the original work.” Am. Geophysical Union v. Texaco Inc., 60 F.3d 913,
`
`
`
`8
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 9 of 14
`
`922 (2d Cir. 1994). But “because ‘nearly all’ fair uses of copyrighted works are conducted for
`
`profit, the Second Circuit has cautioned that ‘the more transformative the new work, the less will
`
`be the significance’ of the commercial sub-factor.” Prince, 265 F. Supp. 3d at 382 (alteration
`
`omitted) (quoting Cariou v. Prince, 714 F.3d 694, 708 (2d Cir. 2013)).
`
`Plaintiff argues that Defendant’s use is commercial because Defendant’s Website is
`
`behind a paywall (a monthly membership costs $4.95, see https://www.ai-ap.com/join), and
`
`because Defendant allegedly uses the Website as “a vehicle for [Defendant’s] commercial
`
`activities, including its sponsored competitions and events,” Pl. Mem. at 7. As Plaintiff correctly
`
`points out, however, “the relevant issue is not Defendant’s business model or means of
`
`generating income, but whether the use at issue is commercial in nature.” Id. (quotation
`
`omitted). Although the Photo cannot be viewed on Defendant’s Website without a paid
`
`membership, thus weighing against a finding of fair use, this factor is not dispositive; the Court
`
`places even less significance on this factor considering the transformative nature of the
`
`secondary use and the other factors discussed below.
`
`3. Bad Faith
`
` Although courts should consider bad faith under the first fair use factor, see Ferdman v.
`
`CBS Interactive Inc., 342 F. Supp. 3d 515, 537 (S.D.N.Y. 2018), it generally “contributes little to
`
`the fair use analysis,” NXIVM Corp. v. Ross Institute, 364 F.3d 471, 479 n.2 (2d Cir. 2004).
`
`Here, Plaintiff concedes the absence of bad faith — Defendant properly attributed the Photo to
`
`Plaintiff and shared the link to the original publication in National Geographic. See Pl. Decl.,
`
`
`
`9
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 10 of 14
`
`Ex. 2; Pl. Mem. at 7–8.5 Accordingly, although of little value, the absence of bad faith weighs in
`
`favor of fair use.
`
`B. Nature of the Copyrighted Work
`
`The second fair use factor considers “(1) whether the work is expressive or creative, . . .
`
`with a greater leeway being allowed to a claim of fair use where the work is factual or
`
`informational, and (2) whether the work is published or unpublished, with the scope for fair use
`
`involving unpublished works being considerably narrower.” Cariou, 714 F.3d at 709–10
`
`(quotation omitted).
`
`The Photo is indisputably creative and published. See Monster Commc’ns, Inc. v. Turner
`
`Broad. Sys., Inc., 935 F. Supp. 490, 494 (S.D.N.Y. 1996) (“[P]hotographic images of actual
`
`people, places and events may be as creative and deserving of protection as purely fanciful
`
`creations.”). The creative nature of the Photo might have weighed slightly against fair use but
`
`for the transformative nature of Defendant’s use, which altered the meaning of the Photo by
`
`using it as one of several examples demonstrating an overall trend in online pet photography.
`
`See Blanch, 467 F.3d at 257 (“[T]he second factor may be of limited usefulness where the
`
`creative work of art is being used for a transformative purpose.” (quotation omitted)); see also
`
`Authors Guild, 804 F.3d at 220 (“The second factor has rarely played a significant role in the
`
`determination of a fair use dispute.”). The second fair use factor weighs minimally, if at all,
`
`against a finding of fair use.
`
`
`It is conceivable that Defendant’s description of the Photo and the National Geographic article that
`5
`featured the Photo, and the Article’s explicit attribution to Plaintiff (which also linked to what appears to be her
`professional website), generated an increase in traffic to the original National Geographic article displaying the full
`array of Plaintiff’s photographs and her commentary on the subject of pet snakes. The Court would be hard-
`pressed to find bad faith under these circumstances.
`
`
`
`10
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 11 of 14
`
`C. Amount and Substantiality of the Portion Used
`
`The third fair use factor asks whether “the quantity and value of the materials used[] . . .
`
`are reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 586 (quotation
`
`omitted). Although the Second Circuit has never “ruled that the copying of an entire work favors
`
`fair use,” “such copying does not necessarily weigh against fair use because copying the entirety
`
`of a work is sometimes necessary to make a fair use of the image.” Bill Graham Archives, 448
`
`F.3d at 613. Thus, “the third-factor inquiry must take into account that ‘the extent of permissible
`
`copying varies with the purpose and character of the use.’” Id. (quoting Campbell, 510 U.S. at
`
`586–87).
`
`While the Photo is displayed in its entirely, such use is reasonable in light of the purpose
`
`and character of the use: to demonstrate the prevalence and increasing popularity of online pet
`
`photography. Defendant appears to have used the Photo to provide visual context for the claim
`
`that the consumption of pet photography would continue its upward trajectory in 2018. See Pl.
`
`Decl., Ex. 2. To achieve this purpose, it was reasonable for Defendant to include a full visual of
`
`the Photo — which is one of several that Plaintiff authorized for publication in the National
`
`Geographic article and is one of ten photographs of pets that Defendant featured in the Article.
`
`See Pl. Decl., Ex. 1, 2. The utility of Defendant’s secondary use is even more reasonable
`
`considering that the title of the Article explicitly references pet photography found online. Cf.
`
`Kelly v. Arriba Soft Corp., 336 F.3d 811, 821 (9th Cir. 2003) (“If Arriba only copied part of the
`
`image, it would be more difficult to identify it, thereby reducing the usefulness of the visual
`
`search engine.”).
`
`
`
`11
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 12 of 14
`
`In this case, the secondary use was limited and focused on the Photo’s embodiment of the
`
`Article’s claim about human interest in viewing photographs of pets; the third factor is, therefore,
`
`neutral.
`
`D. Effect of the Use upon the Market for or Value of the Original
`
`The final fair use factor is “the effect of the use upon the potential market for or value of
`
`the copyrighted work.” 17 U.S.C. § 107(4). This analysis is concerned with “whether the
`
`secondary use usurps the market of the original work.” Blanch, 467 F.3d at 258 (emphasis
`
`added) (quotation omitted). It “focuses on whether the copy brings to the marketplace a
`
`competing substitute for the original, or its derivative, so as to deprive the rights holder of
`
`significant revenues because of the likelihood that potential purchasers may opt to acquire the
`
`copy in preference to the original.” Authors Guild, 804 F.3d at 223. As with the other factors,
`
`“this factor is also influenced by the resolution of the transformativeness inquiry” because “the
`
`more transformative the secondary use, the less likelihood that the secondary use substitutes for
`
`the original.” Prince, 265 F. Supp. 3d at 384 (quotation omitted).
`
`The Second Circuit has made clear that a “transformative market” does not qualify as a
`
`“traditional market.” See Bill Graham Archives, 448 F.3d at 615 (holding that because the
`
`defendant’s use of the copyrighted images as historical artifacts “falls within a transformative
`
`market, [the plaintiff] does not suffer market harm due to the loss of license fees”). And with
`
`respect to the “traditional market,” a court must “look at the impact on potential licensing
`
`revenues for traditional, reasonable, or likely to be developed markets,” not, simply, that the
`
`defendant failed to pay a licensing fee. Id. at 614 (quotation omitted).
`
`After conceding that Defendant’s use of the Photo was “aggregated with additional
`
`images,” Plaintiff argues that “Defendant’s publication, a media outlet with a focus on visual and
`
`
`
`12
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 13 of 14
`
`illustrative art is a traditional market in which Defendant’s secondary use arguably deprived
`
`Plaintiff by providing a competing substitute for the original.” Pl. Mem. at 10. But Plaintiff
`
`“cannot prevent others from entering fair use markets merely by developing or licensing a
`
`market for . . . transformative uses of [his] own creative work.” Bill Graham Archives, 448 F.3d
`
`at 615 (quotation omitted). A traditional market for the Photo might be snake enthusiasts or
`
`perhaps collectors of photographs of snakes or other exotic animals that have made their way
`
`into people’s homes. But Defendant’s use of the Photo as one of several that exemplifies the
`
`prevalence of pet photography as an artform falls into a different, transformative market. It is
`
`thus unlikely that markets for the Photo’s original expressive purpose — “to catch the viewer
`
`off-guard” through Plaintiff’s “own experience of phobia” of snakes, Pl. Decl., Ex. 1 at 3 —
`
`would be affected in any way. In any event, Plaintiff has offered only conclusory and
`
`speculative assertions that Defendant’s use has caused “a meaningful or significant effect upon
`
`the potential market for the copyrighted work.” Authors Guild, 804 F.3d at 224 (quotation
`
`omitted); see Pl. Mem. 10.
`
`Accordingly, the fourth fair use factor weighs in favor of a finding of fair use.
`
`III. Balance of Factors
`
`The Court finds that the balance of the fair use factors favors the Defendant’s use. The
`
`first and most important factor weighs heavily towards a finding of fair use and significantly
`
`colors the other three factors. Defendant’s use of the Photo to represent a trend in photographic
`
`images of pets is transformatively different from the original expressive purpose of the Photo.
`
`The second factor, which might otherwise favor Plaintiff, therefore, has limited weight.
`
`Similarly, although Plaintiff’s Photo was copied in its entirety, the third factor does not weigh
`
`against fair use because the amount of the Photo used was reasonable in light of the
`
`
`
`13
`
`

`

`Case 1:22-cv-08948-VEC Document 33 Filed 04/24/23 Page 14 of 14
`
`transformative purpose to which the Photo was put. Finally, Plaintiff’s appeal to lost licensing
`
`revenue in the “visual and illustrative art” market holds no sway and, in fact, favors a fair use
`
`finding.
`
`CONCLUSION
`
`For the foregoing reasons, the Court concludes that the Defendant’s use of Plaintiff’s
`
`copyrighted Photo is fair use. Accordingly, Plaintiff’s Complaint is DISMISSED with prejudice.
`
`The Clerk of Court is respectfully directed to close this case.
`
`SO ORDERED.
`
`Date: April 24, 2023
`New York, New York
`
`_________________________________
`VALERIE CAPRONI
`United States District Judge
`
`14
`
`
`
`