Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 1 of 21 PageID# 483
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`THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`LARRY PHILPOT,
` Plaintiff,
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` v.
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`MEDIA RESEARCH CENTER INC.,
` Defendant.
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`Case No. 1:17-cv-822
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`MEMORANDUM OPINION
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`The central dispute in this copyright infringement action is whether defendant’s use of
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`two of plaintiff’s photographs of famous musicians to accompany online articles about those
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`musicians’ political views constitutes fair use of the photographs, not impermissible
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`infringement.
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`I.
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`The following facts are derived from the facts contained in defendant’s list of undisputed
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`facts that plaintiff does not oppose. Pursuant to E.D. Va. Local Rule 56(B), “each brief in
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`support of a motion for summary judgment shall include a specifically captioned section listing
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`all material facts” the moving party alleges to be undisputed. In its response, the non-moving
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`party must include “a specifically captioned section listing all material facts as to which it is
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`contended there exists a genuine issue necessary to be litigated” and must cite parts of the record
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`relied on to support the facts alleged. Id. Defendant complied with the requirement and plaintiff,
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`for the most part, did not contest the listed facts, but instead added additional facts. Those
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`additional facts are noted below where relevant and supported by admissible record facts.
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 2 of 21 PageID# 484
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`The Parties
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`• Plaintiff, Larry Philpot, has worked as a professional photographer since 2007 and 2008.
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`• As a part of his work, plaintiff photographs musical artist in concert.
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`• Plaintiff posts his photographs on websites like Wikimedia, in part, to achieve greater
`fame, making his photographs more valuable in the long-term.
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`• Defendant, Media Research Center Inc., is an IRS approved 501(c)(3) non-profit
`organization with its principal place of business in Reston, Virginia.
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`• Defendant publishes news and commentary regarding issues of public debate in order to
`expose and critique media bias against American Judeo-Christian religious beliefs.
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`• Defendant operates a website, www.mrctv.org (“MRCTV”), to broadcast conservative
`values, culture, politics, and liberal media bias and to entertain the public. Plaintiff adds
`that defendant also owns MRCTV to generate revenue for MRC via donations and
`advertising revenue.
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`Chesney Photograph and Pro-Life Article
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`• The Chesney Photograph depicts Kenny Chesney performing in concert.
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`• Plaintiff took the Chesney Photograph to depict Chesney performing in concert; plaintiff
`did not take the photograph to provide commentary on Chesney’s political beliefs.
`Plaintiff adds that plaintiff created the Chesney Photograph for an additional purpose,
`namely to enhance visually articles about Chesney.
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`• Plaintiff owns a copyright for the Chesney Photograph.
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`• Plaintiff uploaded the Chesney Photograph to the Wikimedia website, where the
`photograph was available for use, subject to a Creative Commons attribution license,
`version 3.0 (“CCL”).
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`• The CCL does not require users to provide monetary compensation for use of the
`Chesney Photograph, but it does require licensees to identify plaintiff as the author of the
`Chesney Photograph.
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`• The only remuneration plaintiff has ever received for the Chesney Photograph is the
`undisclosed sums plaintiff received in connection with demand letters plaintiff sent to
`alleged infringers. The record is devoid of any information about the amount of money
`plaintiff received, and it appears that plaintiff’s interest is in artistic attribution, not
`financial remuneration, for the use of the Chesney Photograph.
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`• On or about January 22, 2015, defendant posted an article on MRCTV, entitled “’8 A-
`List Celebrities That Are Pro-Life” (“Pro-Life Article”), which included pictures of, and
`stories about, celebrities who are supportive of the pro-life movement.
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`• The Pro-Life Article contained plaintiff’s Chesney Photograph alongside a discussion of
`a pro-life song written by Chesney.
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`• The Pro-Life Article did not attribute the Chesney Photograph to plaintiff.
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`• Defendant did not charge for access to the Pro-Life Article.
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`• From January 22, 2015 to September 22, 2017, defendant generated approximately
`$16.68 in revenue attributable to advertisements run on the webpage displaying the Pro-
`Life Article.
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`• From July 13, 2017 through October 10, 2017, defendant received approximately $50 in
`donations through the MRCTV website. These donations may have been received
`through the link located on the webpage displaying the Pro-Life Article.
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`Kid Rock Photograph and Senate Article
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`• The Kid Rock Photograph depicts Kid Rock performing in concert.
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`• Plaintiff took the Kid Rock Photograph to depict Kid Rock performing in concert;
`plaintiff did not know Kid Rock was running for U.S. Senate when plaintiff took Kid
`Rock’s photograph. Plaintiff adds that plaintiff created the Kid Rock Photograph for an
`additional purpose, namely to enhance visually articles about Kid Rock.
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`• Plaintiff owns a copyright for the Kid Rock Photograph
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`• Plaintiff uploaded the Kid Rock Photograph to the Wikimedia website on or about
`September 2013, where the photograph was available for use, subject to a CCL.
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`• The CCL does not require users to pay to use the Kid Rock Photograph, but it does
`require licensees to identify plaintiff as the author of the Kid Rock Photograph.
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`• The only remuneration plaintiff has ever received for the Kid Rock Photograph is the
`undisclosed sums plaintiff received in connection with demand letters plaintiff sent to
`alleged infringers. The record is devoid of any information about the amount of money
`plaintiff received, and it appears that plaintiff’s interest is in artistic attribution, not
`financial remuneration, for the use of the Kid Rock Photograph.
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`• On or about July 13, 2017, defendant posted an article on MRCTV, entitled “Kid Rock
`Announces 2018 U.S. Senate Bid” (“Senate Article”), which discussed Kid Rock’s
`announced campaign for election to the United States Senate.
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`• The Senate Article contained a cropped version of plaintiff’s Kid Rock Photograph with a
`headline banner across the bottom of the photograph.
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`• The Senate Article did not attribute the Kid Rock Photograph to plaintiff.
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`• From July 13, 2017 until September 22, 2017, defendant generated approximately $9.89
`in revenue attributable to advertisements run on the webpage displaying the Senate
`Article.
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`• From July 13, 2017 through October 10, 2017, defendant received approximately $50 in
`donations through the MRCTV website. These donations may have been received
`through the link located on the webpage displaying the Senate Article.
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`On July 20, 2017, plaintiff initiated this copyright infringement action against defendant,
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`seeking damages for defendant’s allegedly unauthorized copying and public display of plaintiff’s
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`photographs of Kenny Chesney and Kid Rock. Following completion of discovery, defendant,
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`on November 1, 2017, filed the motion for summary judgment at issue here, arguing: (i) that
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`plaintiff has waived his right to sue for copyright infringement by licensing the photographs; (ii)
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`that defendant’s use of the photographs falls under the “fair use” exception to copyright
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`protections; and (iii) that defendant was exercising its First Amendment speech rights when it
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`used the photographs. Plaintiff opposes the motion, contending: (i) that defendant cannot use the
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`license as a defense to the copyright infringement action; (ii) that defendant’s use of the Chesney
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`and Kid Rock Photographs does not fall within the “fair use” exception; and (iii) that the First
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`Amendment does not insulate defendant from liability.
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`II.
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`The standard of review on motions for summary judgment is too well-settled to warrant
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`extensive discussion. Under Rule 56, Fed. R. Civ. P., summary judgment is appropriate only
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`where there is “no genuine dispute as to any material fact” such that the moving party “is entitled
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`to judgment as a matter of law.” Celotex v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute
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`exists if “there is sufficient evidence on which a reasonable jury could return a verdict in favor of
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 5 of 21 PageID# 487
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`the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
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`this question, courts must “view the evidence in the light most favorable to . . . the nonmovant.”
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`Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The
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`nonmovant, however, cannot rely on “mere allegations”; rather, the nonmovant “must set forth
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`specific facts that go beyond the mere existence of a scintilla of evidence.” Glynn v. EDO Corp.,
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`710 F.3d 209, 213 (4th Cir. 2013) (internal quotations and citations omitted).
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`III.
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`The threshold question in this case is whether plaintiff waived his right to sue for
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`copyright infringement by granting a nonexclusive license to use his copyrighted Chesney and
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`Kid Rock Photographs. The Second Circuit has recognized that “[a] copyright owner who grants
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`a nonexclusive license to use his copyrighted material waives his right to sue the licensee for
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`copyright infringement.” Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998). But where, as
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`here, a nonexclusive license is terminated, the copyright owner may then sue the former licensee
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`for copyright infringement in the event that the former licensee continues to use the copyrighted
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`work. Tattoo Art Inc. v. TAT Int’l LLC, 498 F. App’x 341, 346 (4th Cir. 2012) (“In the post-
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`termination context, TAT's continued display of the copyrighted works constituted infringement
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`for the additional reason that TAT was contractually required to ‘immediately cease all sales’ of
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`the stencils in light of Tattoo Art’s notice of termination for breach.”).
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`Here, it is clear that plaintiff granted a nonexclusive license for the use of his copyrighted
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`material when he posted the Chesney and Kid Rock Photographs on Wikimedia under CCLs.
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`The CCL is a worldwide, nonexclusive license that allows any party, to copy, distribute, transmit
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`and adapt the work for free without seeking express permission. It is thus undisputed that
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 6 of 21 PageID# 488
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`plaintiff offered the public nonexclusive licenses for both the Chesney and the Kid Rock
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`Photographs.
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`First, plaintiff unpersuasively argues that defendant was not a party to the license because
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`there was no meeting of the minds with respect to the terms of the license. The flaw in this
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`argument is that a license is not a contract; rather, a license is “permission to use a copyrighted
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`work in a particular specified manner . . .” Saxelbye Architects, Inc. v. First Citizens Bank & Tr.
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`Co., 1997 WL 702290, at *3 (4th Cir. Nov. 3, 1997). Indeed, “[a] nonexclusive license may be
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`granted unilaterally by a copyright holder” so no meeting of the minds is required. Crump v.
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`QD3 Entm’t, Inc., 2011 WL 446296, at *4 (S.D.N.Y. Feb. 8, 2011) (citation omitted).
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`Accordingly, the mere fact that plaintiff uploaded the Photographs to Wikimedia under a
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`nonexclusive CCL is sufficient to grant a license to defendant.
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`But this does not end the analysis, as it is also clear that the CCL for both Photographs
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`automatically terminates upon a licensee’s breach of the licenese. See Dunnegan Decl. Ex. I
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`(“This License and the rights granted hereunder will terminate automatically upon any breach by
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`You of the terms of this License.”). Here, the parties do not dispute that attribution was a
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`material term of the license, and the parties agree that defendant publicly displayed the
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`Photographs without attribution. See Dunnegan Decl. Ex. F. ¶¶ 16-38, 96, 106. Thus, a
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`reasonable juror could find that defendant breached the license, and as a result, the license was
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`terminated. After termination of the license, defendant’s continued use of the Chesney and Kid
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`Rock Photographs would then be grounds for plaintiff’s copyright infringement action provided
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`there is no other defense, including fair use.
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 7 of 21 PageID# 489
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`IV.
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`Section 106 of the Copyright Act grants “a bundle of exclusive rights to the owner of the
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`copyright,” including the rights “to publish, copy, and distribute the author’s work.” Harper &
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`Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546-47 (1985) (citing 17 U.S.C. § 106).
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`These rights, however, are “subject to a list of statutory exceptions, including the exception for
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`fair use provided in 17 U.S.C. § 107.” Bond v. Blum, 317 F.3d 385, 393 (4th Cir. 2003),
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`abrogated on other grounds by Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016). If
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`fair use, or another statutory exception, is established, then the use of the copyrighted work does
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`not infringe on the copyright owner’s exclusive rights. See 17 U.S.C. § 107.
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`The dispute here focuses on fair use and § 107 of the Copyright Act provides that the
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`following factors must be examined to determine whether a copyrighted work’s use in a
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`particular case constitutes “fair use”, including:
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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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`Supreme Court and Fourth Circuit precedent make clear that in weighing these factors,
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`courts should not treat the factors in isolation, “but rather the results are to be weighed together,
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`in light of the purposes of copyright.” Bouchat v. Balt. Ravens Ltd. P’ship. (Bouchat I), 619 F.3d
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`301, 307-08 (4th Cir. 2010) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578
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`(1994) (internal quotation marks omitted)). At the same time, Fourth Circuit precedent has
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`“placed primary focus on the first factor.” Bouchat v. Balt. Ravens Ltd. P’ship. (Bouchat II), 737
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`F.3d 932, 937 (4th Cir. 2013). And the Supreme Court has noted the paramount importance of
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`the fourth factor. Harper & Row Publishers, Inc., 471 U.S. at 566 (“This last factor is
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`undoubtedly the single most important element of fair use.”). As such, the crux of the parties’
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`fair use dispute focuses chiefly on the first and fourth factors. As described below, the
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`undisputed factual record points persuasively to the conclusion that defendant’s use of the
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`Chesney and Kid Rock Photographs constituted fair use. Thus, defendant’s motion for summary
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`judgment must be granted.
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`A.
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`The first fair use factor—“the purpose and character of the use”1—weighs in favor of
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`defendant because the undisputed factual record reveals that defendant’s use of the Chesney and
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`Kid Rock Photographs is transformative and essentially noncommercial. In this respect, the
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`Fourth Circuit has adopted a two-part inquiry under this first factor, considering: (i) “whether the
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`new work is transformative;” and (ii) “the extent to which the use serves a commercial purpose.”
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`Bouchat II, 737 F.3d at 939. A work is transformative if, instead of “merely supersed[ing] the
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`objects of the original creation,” the new work “adds something new, with a further purpose or
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`difference character, altering the first with new expression, meaning or message.” Campbell,
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`510 U.S. at 578-79 (internal quotation marks omitted).2 Moreover, the Fourth Circuit has made
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`clear that “[the use of copyrighted work] can be transformative in function or purpose without
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`altering or actually adding to the original work.” A.V. ex rel. Vanderhye, 562 F.3d at 639.
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`1 17 U.S.C. § 107(1).
`2 See also A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 638 (4th Cir. 2009) (“A ‘transformative’ use is
`one that ‘employ[s] the quoted matter in a different manner or for a different purpose from the original,’ thus
`transforming it.”).
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`These principles, applied here, compel the conclusion that defendant’s use of the Chesney
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`and Kid Rock Photographs was transformative. The undisputed factual record discloses that the
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`“expression,” “meaning,” and “message” of defendant’s use of the Photographs here is plainly
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`different from plaintiff’s intended use of the Photographs. Plaintiff testified that he was a
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`professional photographer of musicians and that he took the Chesney and Kid Rock Photographs
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`to depict the musicians in concert. See Pl. Dep. 43:14-22.3 By contrast, defendant used the
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`images for the purposes of news reporting and commentary on issues of public concern—
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`namely, informing citizens about pro-life celebrities and conservative celebrities running for
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`political office. See Martin Decl. ¶¶ 15, 26. Moreover, the photographs as used on defendant’s
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`website were surrounded by content and commentary unrelated to the musicians performing in
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`concert; the Chesney Photograph was accompanied by Pro-Life song lyrics and the Kid Rock
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`Photograph was alongside information about the 2018 U.S. Senate election in Michigan. See Ex.
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`A-1, A-2. Plaintiff admitted that he in no way had this purpose in mind—identifying these
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`celebrities as pro-life or candidates for U.S. Senate—at the time he took the photographs. See Pl.
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`3 Despite plaintiff’s deposition testimony that his purpose in taking the Photographs was to depict the artists in
`concert, Pl. Dep. 43:14-16, 75:4-6, plaintiff subsequently filed an affidavit stating that his purpose in taking the
`Photographs was actually to “clearly identify Chesney and Kid Rock for the purpose of visually enhancing articles
`about the performers.” Pl. Decl. ¶ 13. This appears to be nothing more than a litigation tactic on plaintiff’s part,
`namely plaintiff is attempting to create a genuine dispute of material fact as to whether defendant’s use of the
`Photographs was transformative by changing his explanation for taking the Photographs to match the explanation for
`using the Photographs offered by defendant. But it is well settled that where “a party submits an affidavit that is
`inconsistent with a witness’s deposition testimony, the contradictory affidavit is disregarded for purposes of
`summary judgment.” Green v. Nat’l Archives & Records Admin., 992 F. Supp. 811, 822 (E.D. Va. 1998); see also
`In Re Family Dollar FLSA Litig., 637 F.3d 508, 513 (4th Cir. 2011) (“If a party who has been examined at length on
`deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this
`would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
`(quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984))). Thus, plaintiff’s inconsistent declaration
`cannot create a genuine dispute of material fact concerning whether plaintiff captured the Chesney and Kid Rock
`Photographs to show the artists in concert.
`Even assuming plaintiff’s purpose in taking the Photographs was to enhance visually some unidentified
`future articles, defendant’s use of the Photographs would nonetheless be transformative because although defendant
`used the Photographs to identify Kid Rock and Kenny Chesney and to enhance its articles, it did so for the additional
`purpose of identifying these celebrities as pro-life advocates and candidates for public office.
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`Dep. 44:21-45:2, 74:21-75:3.4 In sum, the defendant’s use of the Chesney and Kid Rock
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`Photographs is transformative because defendant’s purpose in using the Photographs—to
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`identify the celebrities as pro-life advocates or conservative Senate candidates—was different
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`from plaintiff’s purpose in taking the Photographs.
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`This conclusion is consistent with precedent from this circuit and elsewhere. In a series
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`of cases in which a copyright owner sued the Baltimore Ravens for using his copyrighted logo,
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`the Fourth Circuit considered the transformative nature of various videos depicting the copyright
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`owner’s Ravens logo. In Bouchat I, the Fourth Circuit found the use of the copyrighted logo in
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`highlight reels from past seasons was not transformative because “[t]he use of the logo in the
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`films serve[d] the same purpose that it did when defendants first infringed . . .”, namely the logo
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`“identifies the football player wearing it with the Baltimore Ravens.” Bouchat I, 619 F.3d at 309.
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`By contrast, in Bouchat II, the Fourth Circuit found that the use of the logo in videos
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`summarizing the performance of players and highlighting the history of the team was
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`transformative. Bouchat II, 737 F.3d at 940. The Bouchat II court noted that the season
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`highlight films at issue in Bouchat I “did not change the way in which viewers experienced the
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`logo, making the use non-transformative.” Id. at 941. The performance summaries and
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`historical videos in Bouchat II, by contrast, used the footage “to tell stories and not simply rehash
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`the season,” and as such, those videos were transformative. Id.
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`Defendant’s use of the Photographs much more closely resembles the use of the
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`Baltimore Ravens logos in Bouchat II than the use of the logos in Bouchat I. Unlike Bouchat I,
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`defendant’s use of the Chesney and Kid Rock Photographs changes the way in which viewers
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`experience the Photographs. Specifically, although in Bouchat I, the films “capture[d] the logo
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`4 Indeed, plaintiff could not have had this purpose in mind because Kid Rock did not announce his plans to run for
`U.S. Senate until well after the photographs were taken.
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`as it originally appeared, and the logo remain[ed] a symbol identifying the Ravens,”5 in this case,
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`defendant captures the Chesney and Kid Rock Photographs as they originally appear but the
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`Photographs do not solely remain Photographs identifying those celebrities as musicians.
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`Rather, defendant’s placing the Photographs alongside its MRCTV articles identifies these
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`celebrities as pro-life advocates and possible conservative U.S. Senate candidates, thereby
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`creating, as in Bouchat II, a “new expression, meaning, or message.” Campbell, 510 U.S. at 579.
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`As in Bouchat II, the Chesney and Kid Rock Photographs here “tell new stories” about the
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`celebrities instead of simply rehashing their identities as musicians. Bouchat II, 737 F.3d at 941.
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`Notably, other circuits have determined that the use of photographs is transformative
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`where, as here, the use serves purposes beyond mere artistic expression, by informing the public
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`about a newsworthy event, providing commentary, or adding other social benefit. See, e.g.,
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`Perfect 10, Inc. v. Amazon.com Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (finding that the use of
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`thumbnail images in search engines was transformative because the use “improv[ed] access to
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`information on the [I]nternet” and provided a “social benefit by incorporating an original work
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`into a new work”); Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 22-23 (1st Cir. 2000)
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`(holding that the republication of photographs taken from a modeling portfolio in a newspaper
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`was transformative because the photographs informed while also serving an entertainment
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`function). Similarly, here, the use of the Chesney and Kid Rock Photographs in association with
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`the Pro-Life and Senate Articles improves access to information and provides social benefit by
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`allowing readers to identify the celebrities depicted as individuals who share their political
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`views.
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`5 Bouchat I, 619 F.3d at 309.
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 12 of 21 PageID# 494
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`The cases plaintiff cites do not compel a contrary result. Thus, in Balsey v. LFP Inc., 691
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`F.3d 747 (6th Cir. 2012), the Sixth Circuit determined that a defendant had not demonstrated that
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`his use of a photograph was transformative as a matter of law. The Balsey case involved a
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`photograph of a news reporter participating in a wet t-shirt concert that was subsequently
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`published in a magazine as a part of a “Hot News Babe” contest. Id. at 747-49. The Sixth
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`Circuit rejected the defendant’s argument that the picture was published to “illustrate its
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`entertainment news story” and considered it more likely that the photo, and the article in which it
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`appeared, were simply used “to enhance readership, rather than as a social commentary.” Id. at
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`759. By contrast here, there is no dispute here that defendant used the Chesney and Kid Rock
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`Photographs as a part of articles providing social commentary and reporting on news. To be
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`sure, the Chesney and Kid Rock Photographs may have enhanced defendant’s articles visually,
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`but the articles, together with the Photographs, were plainly used for the socially beneficial
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`purposes of conveying a political message beyond merely enhancing readership. Accordingly,
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`this case stands in stark contrast to Balsey.
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`Plaintiff also cites Psihoyos v. Nat’l Exam’r, 1998 WL 336655, at *3 (S.D.N.Y. June 22,
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`1998), which is also unpersuasive. The defendant there used a photograph of a car for precisely
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`the same reason for which the photograph was created, namely to show the appearance of an art
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`car, a car covered in artwork. Id. Here, by contrast, defendant is using the Chesney and Kid
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`Rock Photographs for a purpose completely different from the purpose for which the
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`Photographs were created, namely to identify certain celebrities as pro-life advocates or potential
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`conservative Senate candidates. Thus, Psihoyos, like Balsey, is also unpersuasive here.
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`Plaintiff also argues, unpersuasively, that the photograph itself must newsworthy for the
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`use of the photograph alongside a news article to be transformative. This is simply not the case.
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 13 of 21 PageID# 495
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`Plaintiff bases his argument on dicta from an unpublished district court case, Barcroft Media Ltd.
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`v. Coed Media Grp. LLC, 2017 WL 5032993 (S.D.N.Y. Nov. 2, 2017). But that case is neither
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`controlling nor persuasive. In Barcroft Media Ltd., the court considered whether a gossip
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`website’s use of paparazzi photographs of celebrities alongside articles about those celebrities
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`constituted fair use. The court found that the plaintiffs took the photographs at issue “to
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`document the comings and goings of celebrities, illustrate their fashion and lifestyle choices, and
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`accompany gossip and news articles about their lives.” Id. at *6. The defendant then used the
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`photographs for precisely these purposes as the defendant posted the photographs alongside
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`articles about the celebrities’ fashion choices and gossip about their lives. Id. Here, by contrast,
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`plaintiff took the Chesney and Kid Rock Photographs to depict the musicians in concert. See Pl.
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`Dep. 43:14-16, 74:13-17; see also id. at 74:8-17, 75:4-6. Had defendant used the Chesney and
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`Kid Rock Photographs alongside articles about the concerts depicted, then that use might not
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`have been transformative. But importantly, defendant here used the Photographs in a completely
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`different context, namely to identify these celebrities as pro-life advocates or conservative
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`candidates for office.
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`In sum, because defendant used the Chesney and Kid Rock Photographs in a new context,
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`to tell new stories about the musicians as pro-life advocates or candidates for office, defendant’s
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`use of the Photographs was transformative.
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`The second part of the inquiry under the first fair use factor is whether the use of
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`copyrighted work is commercial in nature. The undisputed factual record discloses that
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`defendant’s use of the Chesney and Kid Rock Photographs was not essentially commercial. At
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`most, defendant’s use of the Photographs might be considered commercial only insofar as
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`defendant received very small amounts of revenue ($26.57) through advertisements on the
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 14 of 21 PageID# 496
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`webpages associated with the articles and may have received minor donations ($50) through
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`links on the webpages associated with the articles.
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`At the same time, the undisputed factual record reveals that defendant does not charge
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`readers for access to its articles, nor did it sell the Chesney and Kid Rock photographs to other
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`parties. See Martin Decl. ¶¶ 20, 31. Instead, defendant’s articles were available for free to
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`anyone accessing the Internet. Compare Nunez, 235 F.3d at 22 (finding use was commercial
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`where “[t]he photographs were used in part to create an enticing lead page that would prompt
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`readers to purchase the newspaper”). Moreover, defendant is a nonprofit organization and its
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`mission is to expose and critique media bias against what it views as traditional American Judeo-
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`Christian religious beliefs, not to increase its own profits. See Martin Decl. ¶¶ 3-4. Accordingly,
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`defendant’s use of the Chesney and Kid Rock photographs is “more incidental and less
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`exploitative” than the commercial use typically seen in copyright infringement cases. Kelly v.
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`Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003) (finding “use of [copyrighted work] was
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`more incidental and less exploitative in nature than more traditional types of commercial use”
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`where defendant did not use images directly to promote the website nor did defendant try to
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`profit by selling the images directly).
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`In sum, the record discloses that even assuming defendant’s use of the Chesney and Kid
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`Rock Photographs produced a very small amount of revenue, it was far from essentially
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`commercial. Given this and given that the Supreme Court has recognized that any commercial
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`use is not determinative in and of itself,6 this factor does not outweigh the transformative nature
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`of defendant’s use of the Photographs.
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`6 Sony Corp. of Am. V. Universal City Studios, Inc., 464 U.S. 417, 448-49 (1984) (“Although not conclusive, the
`first factor requires that “the commercial or nonprofit character of an activity” be weighed in any fair use decision.”)
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`Case 1:17-cv-00822-TSE-MSN Document 36 Filed 01/08/18 Page 15 of 21 PageID# 497
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`B.
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`The second factor—“the nature of the copyrighted work”7—is neutral. To begin with,
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`where, as here, the copyrighted work is published,8 the fair use is broader in scope. See A.V. ex
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`rel. Vanderhye, 562 F.3d at 640 (citing Harper & Row Publishers, Inc., 471 U.S. at 555). But
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`the Supreme Court has also instructed that “fair use is more likely to be found in factual works
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`than in fictional works,” and “a use is less likely to be deemed fair when the copyrighted work is
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`a creative product.” Stewart v. Abend, 495 U.S. 207, 237 (1990) (internal quotation marks and
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`alteration omitted). The Chesney and Kid Rock Photographs are likely both factual and
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`creative—the Photographs are factual insofar as they depict the celebrities in concert, and the
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`Photographs are creative insofar as the photographer made judgments about lighting, lens speed,
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`and angle in capturing the Photographs.9 Accordingly, this factor is neutral.
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`C.
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`The thi