`EASTERN DISTRICT OF TENNESSEE
`GREENEVILLE DIVISION
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`2:19-CV-00092-DCLC
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`Plaintiff,
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`Defendant.
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`BRIAN CASTLE,
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`KINGSPORT PUBLISHING
`CORPORATION,
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`vs.
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`MEMORANDUM OPINION AND ORDER
`Defendant Kingsport Publishing Corporation (Defendant) has filed a Motion for
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`Summary Judgment [Doc. 54]. Plaintiff has responded [Doc. 66]. Plaintiff Brian Castle also
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`filed a Motion for Partial Summary Judgment [Doc. 56], which Defendant opposed [Doc. 65].
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`Both motions address the same issue: whether Defendant’s use of Plaintiff’s Photograph violated
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`Section 501 of the Copyright Act, 17 U.S.C. § 101 et seq. The matter is now ripe for
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`adjudication.
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`I.
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`FACTUAL BACKGROUND
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`The facts in this case are largely undisputed. In 2018, Sullivan County, Tennessee
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`decided to build a new high school, which turned out to be an unpopular decision at the time.
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`[Doc. 66-1, ¶ 22-23]. After construction began, a public debate ensued over whether they were
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`constructing the school over sinkholes [Doc. 66-1, ¶ 24-25]. It became a “hot topic” with the
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`Sullivan County Board of Education and in the community as a whole [Doc. 66-1, ¶ 28].
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`Numerous social media postings addressed the topic but because “no one could confirm them,”
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`Plaintiff set out to prove their existence with his drone [Doc. 66-1, ¶ 27]. Believing the
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`community should have “information about the construction site,” he flew his drone over the
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`site in July 2018, and took “a drone image,” which became the Photograph at issue in this case
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`[Doc. 66-1, ¶¶ 32- 33]. Plaintiff added the yellow descriptive text into the Photograph [Doc. 66-
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`1, ¶ 43]. Plaintiff believed his Photograph proved they were building the high school over
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`sinkholes [Doc. 66-1, ¶ 31].
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`On August 1, 2018, the Sullivan County Board of Education called a meeting to discuss
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`the issue of “potential sinkholes at the West Ridge High School construction site.” [Doc. 66-1, ¶
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`44]. Before the meeting, Plaintiff had the Photograph enlarged to 2 ft. x 5 ft. and gave it to
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`school board member Mark Ireson so that he could use it at the meeting [Doc. 66-1, ¶ 44-48].
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`The meeting was a “completely packed house” with people overflowing “out in the parking lot.”
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`[Doc. 66-1, ¶ 46]. Plaintiff attended the meeting and distributed about 10 copies of the
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`Photograph, which circulated in the crowd [Doc. 66-1, ¶ 50]. He was not, however, identified as
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`the source or creator of the handouts, and they did not contain any copyright notices. [Doc. 66-1,
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`¶ 53, 64].
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`At the meeting, board member Ireson displayed Plaintiff’s enlarged Photograph as
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`evidence of possible sinkholes at the site [Doc. 66-1, ¶ 59]. And while many believed the
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`Photograph showed evidence of the presence of sinkholes, the lead engineer did not [Doc. 66-1,
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`¶ 58, 60]. The geotechnical engineer for the project, Mr. Alex Merrit, however, explained that
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`the geologic formations in the Photograph were not sinkholes at all but “were a result of blasting
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`operations….” [Doc. 66-1, ¶ 60].
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`Plaintiff posted the Photograph and the drone footage on his Facebook page after the
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`BOE meeting [Doc. 66-1, ¶¶ 67-67]. There were at least 3,500 views of his drone footage and
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`Photograph on his Facebook page [Doc. 66-1, ¶ 70]. The day after the BOE meeting, on August
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`2, 2018, Plaintiff called a news outlet about licensing his Photograph. But he does not recall
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`which specific news or media outlets he contacted about a license [Doc. 66-1, ¶¶ 76-77]. In any
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`event, he never licensed the Photograph, nor did he make any money from the Photograph [Doc.
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`66-1, ¶ 78].
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`On August 8, 2018, Defendant published a news article which republished the
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`Photograph Plaintiff had distributed as a handout at the BOE meeting on August 1, 2018 [Doc.
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`66-1, ¶ 88]. Defendant was unaware that Plaintiff had created the Photograph prior to using it in
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`their news story [Doc. 66-1, ¶ 89]. Its article was about the public debate over whether
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`geological formations depicted in the Photograph were the result of sinkholes or blasting during
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`the construction of the high school [Doc. 66-1, ¶ 92]. Plaintiff acknowledges that Defendant’s
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`use of the Photograph was for “news reporting.” [Doc. 66-1, ¶ 90].
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`Defendant displayed the Photograph at the top of its news article. [Doc. 55-2, pg. 143].
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`Defendant’s article is reprinted here:
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`Images of “anomalies” Sullivan County school board member Mark Ireson identified as potential sinkholes turned out to be the
`result of rock blasting, an engineer told the school board Tuesday.
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`Engineer explains origin of ‘sinkholes’ on West Ridge High site
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`3
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`BLOUNTVILLE — The purported sinkholes on the site of Sullivan County’s
`future high school turned out to be pits formed by blasting rock, an engineer says.
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`That’s how Alex Merritt on Tuesday night shot down the drone images school
`board member Mark Ireson introduced last week, images Ireson presented as
`“anomalies” needing further investigation as possible sinkholes and a reason to
`delay awarding the construction bid for West Ridge High School.
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`Merritt, geotechnical engineer of record for the project and Tri-Cities branch
`manager for GEOServices LLC, told the Board of Education the purported
`sinkholes are nothing more than blasting pits left from dynamiting rock to level
`the site of the new school, which is scheduled to open in the fall of 2020. One
`photo indicated 139 F150 pickups would fit in the anomaly.
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`One pit was shown in drone photos Ireson shared with the BOE during a called
`meeting to vote on the West Ridge construction contracts, the same pit also shown
`in a drone video posted on Facebook. Merritt said that pit and a smaller one were
`simply the result of blasting.
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`“That is not a karst-induced sinkhole. That is blasting operations,” Merritt told the
`board after an introduction from architect Dineen West.
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`She had offered to call Merritt during last Wednesday’s called BOE meeting,
`during which a roomful of mostly school opponents faced the board. However,
`the BOE approved granting the low bids on the construction contracts totaling
`almost $59.3 million, including $4.8 million to be paid from fund balance and the
`rest from bond proceeds.
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`Merritt said that Ireson’s presentation at the called meeting focused on March
`2017 information included in a bid packet and that additional investigation of
`possible sinkholes on the site had been done.
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`“That further review has been completed,” Merritt said.
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`He said initially five core borings were done on the site, but that after the footprint
`of the school was moved slightly, 12 new borings in “May or June” of this year
`were completed.
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`Ireson said he had asked for the results of the additional investigations, but
`Director of Schools Evelyn Rafalowski told him it “didn’t happen.”
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`After Merritt left, Ireson asked for the details on the second set of borings as well
`as any potential additional areas of concern the drilling might have revealed. West
`and Rafalowski said they would supply that information to the board.
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`4
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`After the meeting, West described the March 2017 “anomalies” language in bid
`documents as boilerplate for any major construction project in sinkhole-prone
`Northeast Tennessee.
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`During the BOE meeting, Rafalowski also presented a packet of documents
`indicating the Tennessee Department of Education had no findings, issues or
`problems with the way the school system has handled federal money for the past
`three years.
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`Ireson had said that auditor Dustin Winstead had told him an investigation of
`carryover federal funds and possible need for corrective actions would be
`initiated, but Winstead’s boss, Maryanne Durski, wrote a letter dated Monday
`saying that “no corrective actions were needed” on any federal audits.
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`“I think it was more of a misunderstanding than anything,” Rafalowski said.
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`[Doc. 55-2, pg. 143-45].
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`Defendant received about $15.20 from indirect advertisements based on web traffic to the
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`article [Doc. 66-1, ¶ 97]. It has not sold any copies of the Photograph or used it to promote or
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`increase traffic to its website. [Doc. 66-1, ¶ 95, 96]. Plaintiff contends he would have charged
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`Defendant $4,000 to $5,000 to license the Photograph, but readily admits he has never received
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`that kind of money for any of the photographs he has ever created [Doc. 66-1, ¶ 98-99].
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`Plaintiff sued Defendant under Section 501 of the Copyright Act, claiming that
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`Defendant reproduced without authorization his Photograph which Plaintiff owned and had
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`registered [Doc. 1, pg. 1]. Defendant filed a Motion to Dismiss, asserting a “fair use” affirmative
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`defense to Plaintiff’s case [Doc. 26]. The Court denied his motion [Doc. 46] finding that the
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`Court could not adequately address whether Defendant’s use constituted “fair use” simply on the
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`pleadings, without more contextual information. Since that denial, Defendant has filed its
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`Motion for Summary Judgment, claiming there is no genuine issue of material fact and that it is
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`entitled to judgment as a matter of law.
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`II.
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DOC. 54]
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`Defendant has filed a Motion for Summary Judgment [Doc. 54], claiming that its use of
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`Plaintiff’s Photograph as part of its on-line news story was “fair and impliedly licensed.” [Doc.
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`55, pg. 6]. It claims that Plaintiff “widely, and intentionally, published the photograph at issue
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`here before ever attempting to obtain a fee for it.” [Id.]. It claims that its news story simply
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`“recount[ed] the debate over what the photograph actually depicted, and displayed the
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`photograph given to the reporter.” [Id. at pg. 7].
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`In response, Plaintiff contends that Defendant’s use of his Photograph was not “fair use”
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`because Defendant used the Photograph “for the same purpose for which it was created, namely
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`to show an aerial view of the West Ridge High School construction site to determine whether
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`geological sinkholes existed (or not).” [Doc. 66, pg. 7]. Plaintiff claims Defendant did not report
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`“on any political or social controversy that arose because of the very existence of the photograph
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`itself.” [Doc. 66, pg. 10]. He argues that the Photograph was not controversial, but it was the
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`subject matter of the photograph that lends itself to controversy. [Doc. 66, pg. 13]. It is this
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`distinction that he claims makes all the difference. As a result, Plaintiff argues Defendant’s
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`motion should be denied.
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`III.
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`STANDARD OF REVIEW
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`Summary
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`judgment
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`is proper where “the pleadings, depositions, answers
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`to
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`interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
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`genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
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`of law.” Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view
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`the facts contained in the record in the light most favorable to the nonmoving party. Matsushita
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`Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v.
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`Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The moving party bears the initial burden of
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`demonstrating that no genuine issue of material facts exists. Celotex Corp. v. Catrett, 477 U.S.
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`317, 323 (1986). The burden then shifts to the nonmoving party to “come forward with
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`significant probative evidence showing that a genuine issue exists for trial.” McKinley v. Bowlen,
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`8 F. App'x 488, 491 (6th Cir. 2001). The nonmoving party “may not rest upon mere allegations
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`or denials of his pleading but must set forth specific facts showing that there is a genuine issue
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`for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A mere scintilla of
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`evidence is not enough; the Court must determine whether a fair-minded jury could return a
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`verdict in favor of the nonmoving party based on the record. Id. at 251-252.
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`IV. ANALYSIS
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`A.
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`Introduction
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`The Copyright Act protects “original works of authorship fixed in any tangible medium
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`of expression.” 17 U.S.C. § 102(a). It provides that “[a]nyone who violates any of the exclusive
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`rights of the copyright owner … is an infringer of the copyright or right of the author….” 17
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`U.S.C. § 501(a). The owner of a copyright has exclusive rights to reproduce the work and in the
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`case of pictorial works, the owner can display the work publicly. 17 U.S.C. § 106. To state a
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`claim under the Copyright Act, the plaintiff must prove two elements: “(1) ownership of a valid
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`copyright, and (2) copying of constituent elements of the work that are original.” Enchant
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`Christmas Light Maze & Market Ltd. v. Glowco, LLC, 958 F.3d 532, 563 (6th Cir. 2020)
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`(quoting Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
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`Plaintiff asserts that he has a valid copyright in the Photograph he made and presented to
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`school board member Mark Ireson. Indeed, he did register the Photograph but did not register
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`the same image with his textual and visual additions that he distributed at the BOE meeting,
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`which Defendant ultimately republished [Doc. 55-2, pg. 138; Doc. 55-2, pg. 143]. The focus of
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`Defendant’s motion is not so much on whether Plaintiff’s copyright is valid but on whether its
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`use in covering the controversy at the BOE meeting constituted “fair use” and not a violation of
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`Plaintiff’s exclusive right.
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`The Copyright Act requires a plaintiff to show the defendant violated at least one of the
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`exclusive rights granted to the copyright holder. 17 U.S.C. § 106. In this case, Plaintiff contends
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`that Defendant violated his right to display the Photograph exclusively by reproducing it on its
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`webpage in the news story it covered regarding the controversy that occurred at the school board
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`meeting on August 2, 2018. Defendant reproduced the Photograph in its news story covering the
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`school board controversy. It contends, however, that it cannot be held liable because its use is
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`covered by the “fair use” doctrine.
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`B.
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`Fair Use Analysis
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`The rights granted to copyright holders under the Copyright Act are not absolute but are
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`qualified by “limitations on exclusive rights.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S.
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`519, 523, 133 S.Ct. 1351, 185 L.Ed.2d 392 (2013) (citing 17 U.S.C. §§ 107–22). Fair use is a
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`statutory exception to copyright infringement. Princeton Univ. Press v. Mich. Document Servs.,
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`99 F.3d 1381, 1390 fn. 5 (6th Cir. 1996)(finding fair use is an affirmative defense, with the party
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`claiming its application, carrying the burden of proof). The Copyright Act provides that “the fair
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`use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching
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`..., scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. The factors
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`the statute requires the Court to consider include:
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`(1)
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`(2)
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`the purpose and character of the use, including whether such use is
`of a commercial nature or is for nonprofit educational purposes;
`the nature of the copyrighted work;
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`(3)
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`(4)
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`the amount and substantiality of the portion used in relation to the
`copyrighted work as a whole; and
`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. It is a mixed question of law and fact. Harper & Row, Publishers v. Nation
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`Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). The statute requires the
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`Court to engage in a “case-by-case determination of whether a particular use is fair.” Id. at 549.
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`Where the “facts are sufficient to evaluate each of the statutory factors,” the Court can decide the
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`fair use issue. Id. The Court will now turn to the statutory factors.
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`1.
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`Purpose and Character of the Use
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`The first statutory factor looks at the “purpose and character” of Defendant’s use of
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`Plaintiff’s copyrighted work. This includes consideration of “whether the new work is
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`‘transformative,’ and whether the use of that work is for commercial or noncommercial
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`purposes.” Balsley v. LFP, Inc., 691 F.3d 747, 758 (6th Cir. 2012)(citations and quotations
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`omitted). The Court should look to “whether the new work … adds something new, with a
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`further purpose or different character, altering the first with new expression, meaning, or
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`message.” Campbell, 510 U.S. at 579. If the work is “merely retransmitted in a different
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`medium” or if the secondary use is “the same as the original use,” the new work is not
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`transformative. Balsley, 691 F.3d at 758 (citing Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19
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`(9th Cir. 2003)).
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`Defendant contends here that it materially transformed the nature and meaning of
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`Plaintiff’s Photograph by adding news commentary about the controversy Plaintiff’s Photograph
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`generated at the school board meeting. It claims its purpose was to report that the Photograph
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`did not depict what school board member Ireson claimed it depicted. On the other hand, Plaintiff
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`argues Defendant’s secondary use was not transformative “because Defendant did not report on
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`any political or social controversy that arose because of the very existence of the photograph
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`itself.” [Doc. 66, pg. 10]. He argues, instead, Defendant “merely used the photograph to
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`illustrate a descriptive news story about whether the holes in the ground at the construction site
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`constituted geographic sinkholes or man-made holes.” [Doc. 66, pg. 10].
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`Defendant’s use of the Photograph was for news reporting, and Plaintiff does not dispute
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`that [Doc. 66-1, ¶ 90]. The caption under the Photograph provides: “Images of ‘anomalies’
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`Sullivan County school board member Mark Ireson identified as potential sinkholes turned out to
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`be the result of rock blasting, an engineer told the school board Tuesday.” [Doc. 55-2, pg. 143].
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`Rather than simply using the Photograph to illustrate a “descriptive news story,” Defendant was
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`going to the heart of the controversy with its commentary. School board member Ireson used the
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`2 ft. x 5 ft. enlarged Photograph to show the members of the BOE, and for that matter, the public,
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`that these anomalies were sinkholes and warranted further investigation. Many believed that the
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`Photograph showed the presence of sinkholes. [Doc. 66-1, ¶ 58]. That generated a significant
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`controversy which would have obviously impacted the continued construction of the new school.
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`Defendant did not merely reprint the Photograph in a different medium with nothing more, and it
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`did not republish the Photograph adopting Plaintiff’s view of what it depicted. It presented a
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`contrary view – that of the geotechnical engineer over the construction project. Defendant
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`explained that “[t]he purported sinkholes … turned out to be pits formed by blasting rock, an
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`engineer says. That’s how Alex Merritt … shot down the drone images … Ireson introduced last
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`week, images Ireson presented as ‘anomalies’ needing further investigation as possible
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`sinkholes….” [Doc. 55-2, pg. 143](emphasis added). Again, the focus was on a contrary view
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`of the drone images that Ireson was claiming justified further investigation Defendant’s use
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`brought new meaning to the Photograph and directly challenged Ireson’s and Plaintiff’s
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`interpretation of the Photograph.
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`A secondary use “can be transformative in function or purpose [even] without altering or
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`actually adding to the original work.” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756
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`F.3d 73, 84 (2d Cir. 2014) (quotation omitted). Defendant did not alter Plaintiff’s Photograph,
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`but its use differed from that of Plaintiff. Plaintiff used the Photograph to show “whether the
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`reported sinkholes actually existed at the proposed location for the new high school.” [Doc. 66,
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`pg. 6]. He claims, however, that Defendant “used the Photograph to merely illustrate a news
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`story about the subject matter depicted in the image.” [Doc. 66, pg. 13]. But Defendant did not
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`use the Photograph for that purpose at all. Rather, it used it to address issues of public concern
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`generated as a result of Ireson’s presentation to the BOE, which included the use of the
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`Photograph to prove his point. It was the Photograph that the engineer rebutted and it was that
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`rebuttal that Defendant’s news story was about. See Philpot v. Media Research Center, 279
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`F.Supp.3d 708, 714-15 (E.D.Va. 2018)(finding fair use because, in part, the defendant had used
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`the image to address “issues of public concern”).
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`The preamble to Section 107 specifically identifies “news reporting” as not an
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`infringement of a copyright. But Plaintiff claims this “only applies to news reporting of the
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`copyrighted work itself[] not news reporting about the subject matter depicted in the image.”
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`[Doc. 66, pg. 11](citing Barcroft Media, Ltd. v. Coed Media Grp., LLC, 297 F. Supp. 3d 339,
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`352 (S.D.N.Y. 2017)). Barcroft does not help Plaintiff here. Barcroft noted that a display of an
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`image may be transformative “where the use serves to illustrate criticism, commentary, or a news
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`story about that work.” Barcroft Media, Ltd., 297 F. Supp. 3d at 352. But that is what
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`Defendant did, reporting on the various criticism about what the Photograph depicted. Ireson and
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`Plaintiff claimed the image showed sinkholes, the engineer said blasting pits. Defendant did not
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`use the Photograph as an “illustrative aid” to show the presence of sinkholes.
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`Under this factor, the Court also considers whether Defendant’s use was for commercial
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`purposes. To be sure, Defendant received about $15.20 from indirect advertisements based on
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`the web traffic its website received from views of the article. [Doc. 66-1, ¶ 97]. The
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`significance of commercialism on fair use decreases “the more transformative the work” is.
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`Campbell, 510 U.S. at 579. In Campbell, the Supreme Court noted that the weight to give
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`commercialism “will vary with the context….” Id. at 585. In other words, it is not dispositive.
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`In Campbell, the Supreme Court reversed the decision of the lower court because it had given
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`“dispositive weight to the commercial nature” of the work. Id. at 584. The Supreme Court held
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`that the “commercial … purpose of a work is only one element of the first factor enquiry into its
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`purpose and character.”1 Id. Taking that cue from Campbell, on balance, commercialism does
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`not play a significant role in this case. Unlike in Balsley, where the defendant made over one-
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`million dollars on the sales of the magazine that contained the pirated photograph, Defendant
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`made less than $20.00. Balsley, 691 F.3d at 771.
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`2.
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`Nature of the Copyrighted Work
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`The second factor addresses the “nature of the copyrighted work.” 17 U.S.C. § 107(2).
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`“This factor calls for recognition that some works are closer to the core of intended copyright
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`protection than others, with the consequence that fair use is more difficult to establish when the
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`former works are copied.” Campbell, 510 U.S. at 586. Under this factor, the Court considers
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`1 As the Supreme Court in Campbell noted, “[i]f, indeed, commerciality carried presumptive
`force against a finding of fairness, the presumption would swallow nearly all of the illustrative
`uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, …
`since these activities are generally conducted for profit in this country.” Id. at 584 (quotations
`and citations omitted).
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`whether the work was (1) “factual or creative” and (2) published or unpublished. Balsley, 691
`F.3d at 760; Cariou v. Prince, 714 F.3d 694, 709-10 (2d Cir. 2013). “Fair use of expressive or
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`creative works is more difficult to establish than fair use of factual or informational works, and
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`the fair use defense is narrower when applied to unpublished works than when applied to
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`published works.” Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d
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`312, 327 (S.D.N.Y. 2019)(citing Cariou, 714 F.3d at 709-10). As with the first factor, the
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`significance of the second factor diminishes where the secondary work is transformative. Id.
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`The Photograph is a drone image of a construction site. Plaintiff’s purpose in taking it
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`was to show the existence of sinkholes. Plaintiff admits that the Photograph is not a product of
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`artistic choice and expression [Doc. 66-1, ¶¶ 36-42]. He admits that “anyone [] could have taken
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`drone shots of the construction site [Doc. 57, pg. 14]. His claim to creativity here relates to his
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`skill operating the drone [Doc. 66, pg. 13]. Even though Plaintiff diminishes his role in taking
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`the Photograph, photographs can be creative and worthy of protection even if from a drone.
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`Photograph images can be creative. In this context, however, the Photograph was intended to
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`convey information and not the result of creative expression.
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`The Court also looks to see if the Photograph had been published. Plaintiff had
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`previously published it at the BOE meeting, in handouts he distributed at the meeting, and on his
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`Facebook page. While this favors a finding of fair use, this factor “rarely play[s] a significant
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`role in the determination of a fair use dispute.” Authors Guild v. Google, Inc., 804 F.3d 202, 220
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`(2d Cir. 2015).
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`3.
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`Amount and Substantiality of the Portion Used
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`The third factor addresses “the amount and substantiality of the portion used in relation to
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`the copyrighted work as a whole.” 17 U.S.C. § 107(3). “[T]he extent of permissible copying
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`varies with the purpose and character of the use.” Campbell, 510 U.S. at 586-87. The focus here
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`is on whether the copying is “reasonable in relation to the purpose of the copying.” Id. at 586. In
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`this case, Defendant used the entirety of the Photograph. Plaintiff contends Defendant’s copying
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`was “more than what was necessary to effectuate its purpose.” [Doc. 66, pg. 14]. But he does
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`not explain why. Plaintiff’s enlarged Photograph was used at the BOE meeting as evidence that
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`the construction site was ridden with sinkholes. Defendant’s article reported on the view held by
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`the lead engineer, which contradicted the view Ireson had at the BOE meeting. In this context,
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`Defendant’s copying the Photograph in its entirety was reasonable and consistent with its
`purpose of providing another explanation for the anomalies shown in the Photograph. That
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`Defendant used the entire Photograph “does not necessarily weigh against fair use because
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`copying the entirety of a work is sometimes necessary to make a fair use of the image.” Bill
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`Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). That is the case
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`here.
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`4.
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`Effect of the Use Upon the Market for or Value of the Original
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`The final fair use factor considers “the effect of the use upon the potential market for or
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`value of the copyrighted work.” 17 U.S.C. § 107(4). This factor “requires courts to consider not
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`only the extent of market harm caused by the particular actions of the alleged infringer, but also
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`‘whether unrestricted and widespread conduct of the sort engaged in by the defendant would
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`result in substantially adverse impact on the potential market’ for the original.” Campbell, 510
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`U.S. at 590, 114 S.Ct. 1164. “[W]hen … the second use is transformative, market substitution is
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`at least less certain, and market harm may not be so readily inferred.” Campbell, 510 U.S. at
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`591. “The more transformative the secondary use, the less likelihood that the secondary use
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`substitutes for the original.” Castle Rock Entm't, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 145
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`(2d Cir. 1998)(citing Campbell, 510 U.S. at 591). There exists a “close linkage between the first
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`and fourth factors, in that the more the copying is done to achieve a purpose that differs from the
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`purpose of the original, the less likely it is that the copy will serve as a satisfactory substitute for
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`the original.” Authors Guild v. Google, Inc., 804 F.3d 202, 223 (2d Cir. 2015).
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`Plaintiff argues that Defendant’s copying of the Photograph supplanted the market in
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`which Plaintiff had a reasonable expectation to earn licensing revenue. Plaintiff has not shown
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`there is even a potential market for a drone image of a high school construction site in Sullivan
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`County, Tennessee that attempts to show the existence of potential sinkholes [Doc. 66-1, ¶¶ 73-
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`79]. It is undisputed that he has not earned anything from the Photograph, and the one outlet he
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`contacted in an attempt to license the Photograph was not interested [Id.]. Moreover, the purpose
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`to which Defendant used the Photograph differed than that of Plaintiff, reducing the likelihood
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`that it would be a satisfactory substitute for the original. Authors Guild, 804 F.3d at 223.
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`Defendant has not usurped the market for Plaintiff’s work. To be sure, Defendant’s use was
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`commercial but only to the extent reporting on the news is commercial. Defendant only
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`generated $15.20 from indirect ad revenue from its webpage. Thus, it seems obvious that
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`Defendant’s use of Plaintiff’s Photograph did not have a “substantially adverse impact on the
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`potential market for the original.” Campbell, 510 U.S. at 590.
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`On balance, Defendant’s use of Plaintiff’s Photograph provided a benefit to the
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`community as it used the Photograph in a story about a topic of public concern. Its use was
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`transformative because it provided a different interpretation of the Photograph than Plaintiff’s
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`purpose, which was to show the existence of sinkholes at the construction site. The Photograph
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`was informative and had already been published when Defendant republished it. That Defendant
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`used the Photograph in its entirety does not weigh against it in this context. Finally, Defendant’s
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`use did not have any adverse effect on the market for Plaintiff’s Photograph. In consideration of
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`these statutory factors, the Court holds that as a matter of law Defendant’s use of Plaintiff’s
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`Photograph was fair.2
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`V.
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`CONCLUSION
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`For the above reasons, the Court GRANTS Defendant’s motion for summary judgment
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`[Doc. 54]. The Court DENIES Plaintiff’s motion for partial summary judgment [Doc.56]. The
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`Court DISMISSES Plaintiff’s copyright claim with prejudice. The Clerk is directed to close the
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`case. A separate judgment shall enter.
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`SO ORDERED.
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`s/Clifton L. Corker
`United States District Judge
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`2 The Court finds it unnecessary to address Defendant’s arguments that Plaintiff had impliedly
`licensed the Photograph to them based on his distribution of the Photograph at the BOE meeting.
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`