Boesen v. United Sports Publications, Ltd.

District court grants motion to dismiss photographer’s copyright infringement claim, holding that publisher’s article that “embedded” tennis pro Caroline Wozniacki’s Instagram post featuring plaintiff’s photograph constituted fair use. 

Tennis pro and 2018 Grand Slam title holder Caroline Wozniacki announced her early retirement via Instagram on Dec. 2, 2019, posting a cropped version of a photograph showing her as a teenager preparing to serve. On the same day, defendant United Sports Publications Ltd. ran an article on the Long Island Tennis Magazine website, quoting the caption from Wozniacki’s Instagram post and summarizing her career, noting, among other things, that she had accumulated more than 630 single victories and 30 titles. In connection with this commentary, the article “embedded,” or hyperlinked to, the image from Wozniacki’s original Instagram post. Plaintiff, photographer Michael Barrett Boesen, who originally snapped the photo of Wozniacki in 2002, then registered a copyright for the photograph (which became effective on Dec. 27, 2019) and sued United Sports for copyright infringement.

Defendant moved to dismiss for failure to state a claim upon which relief can be granted, based on the fair use doctrine. The district court found that defendant established fair use on the face of the complaint, finding that all four fair use factors—(1) the purpose and character of the use, including whether the use was transformative, for commercial purposes or in bad faith in the specific context used; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the work used; and (4) the effect of the use on the potential market for the work —weighed in favor of defendant.

First, the district court held that defendant’s use was sufficiently transformative on the grounds that the very purpose of embedding Wozniacki’s Instagram post (which only incidentally used plaintiff’s photograph) was to report on the post itself. The article thus created “new meaning” for the photograph because it was used to report that Wozniacki had announced her retirement via social media and not to describe her playing tennis. That defendant did not use the photograph “for the precise reason it was created” made “all the difference” to the court’s analysis. The court also found that defendant’s status as a “for-profit publisher” and publishing the article next to advertisements did not diminish the transformative nature of the use given that the complaint failed to allege any sufficient link between the embedded post and defendant’s commercial benefit.

As to the second fair use factor, the nature of the copyrighted work, the court noted that because the photo was published by plaintiff on his own social media page and website as well as by Wozniacki, it did not merit the same protections as does an unpublished work.

Third, as to the amount and substantiality of the portion of the work used, the court concluded that Wozniacki’s choice in cropping the image and using a lower-resolution version of it tipped in defendant’s favor. By embedding the post, defendant did not control how the photograph would be presented. The court also rejected plaintiff’s arguments—that defendant commission its own photojournalist, publish the article without the photo or obtain a license from plaintiff—reasoning that “any of these options would defeat the purpose of the story: to inform readers about Wozniacki’s retirement announcement on social media.” Finally, with respect to the impact on the potential market for the work, the court concluded that it is “implausible” defendant’s use could compete with plaintiff’s business or affect the market value of the photo, because it did not appear on its own but only as part of a post with accompanying text. The final factor also weighed in favor of finding fair use because defendant’s reproduction, which utilized a cropped low-resolution version of the photo, would be a poor substitute for the original.

Defendant also sought to require Boesen to post a bond given his representation by counsel Richard Liebowitz, who defendant argued is known to flout court orders. The court denied the bond request as inappropriate at the stage of the litigation given that defendant could move for attorneys’ fees immediately. The court stressed that if it ultimately ordered plaintiff to pay attorneys’ fees and costs, “it [would] not tolerate noncompliance with that order.”