Whiddon v. Buzzfeed, Inc.

District court dismisses photographer’s copyright infringement claim against Buzzfeed, finding Buzzfeed’s use of photographs of influencer before and after she was involved in motorcycle accident, as part of article about public controversy around influencer’s decision to post those photos, constitutes fair use.

Plaintiff Lindsay Grace Whiddon is a professional photographer. In July 2019, she took three photographs of her friend Tiffany Mitchell, a lifestyle blogger. The photographs featured Mitchell posing in front of a motorcycle and then receiving medical attention as she lay on the ground in the aftermath of a motorcycle accident. Mitchell posted these photographs to her Instagram account. The post resulted in a flurry of negative reactions from social media users. In August 2019, Buzzfeed posted an article on www.buzzfeednews.com  titled “An Influencer Is Defending Her Decision to Post a Photo Shoot of Her Motorcycle Accident on Instagram.” The article centered on the controversy surrounding Mitchell’s social media post about her motorcycle accident and the public reaction to the “optics of taking, and then sharing, professional-grade photos of her actual accident.” Buzzfeed embedded into its article screenshots of the post featuring the photographs, as well as various comments about the post. The article was also posted on Buzzfeed’s Facebook account. Plaintiff sued Buzzfeed for copyright infringement, and Buzzfeed moved to dismiss on the grounds that its use of the photographs constitutes fair use.

In assessing whether a use is fair, courts consider four nonexclusive statutory factors. The first factor—the purpose and character of the use—is considered the most important and focuses on whether the new work is “transformative” and exploited for “commercial purposes.” Buzzfeed argued that its use of the photographs was transformative because it was part of news commentary about the controversy surrounding the post. The district court agreed. The court stated that Buzzfeed’s use of the photographs as commentary on the social media backlash was far different from the reasons behind Mitchell’s post and plaintiff’s decision to photograph the shots in the first place—to depict Mitchell’s motorcycle accident. The court also noted that Buzzfeed could not have simply reproduced the social media comments about the post, because without the photographs, readers would be incapable of forming independent opinions on the story. Moreover, the court found that Buzzfeed’s article likely did not lead to an increase in revenue from advertising and merchandising sales, because, as plaintiff admitted, Buzzfeed is already a popular and lucrative commercial enterprise. The court explained that, in any case, any commercial nature of the use is outweighed by the transformative nature of the use.

The court next found that the second fair use factor—the nature of the copyrighted work—weighs somewhat in plaintiff’s favor, because the photographs were expressive and exhibited creativity. The court “assign[ed] the second statutory factor much less heft than the first,” however.

The third factor considers whether the “quantity and value of the materials used are reasonable in relation to the purpose of the copying.” The court held that this factor weighs in favor of Buzzfeed for similar reasons as for the first factor, including that had Buzzfeed reduced the  visible portions of the photographs, readers would be presented with an incomplete description of the controversy.

Finally, the fourth factor—the “effect of the use upon the potential market for or value of the copyrighted work”—calls on courts to consider whether the secondary use is likely to compete as a substitute for the original in the marketplace. The court, finding that this factor supports fair use, held that it would not. The court reasoned that because the photographs appeared in screenshots of the post, the screenshots would not be competing in any market with the photographs. The court found it “highly unlikely” that someone would seek to license the photographs from Buzzfeed rather than from plaintiff. The court also found that plaintiff’s willingness to share the photographs with Mitchell’s followers on Instagram cut against any suggestion that she intended to commercialize the photographs. With three of the four fair use factors favoring Buzzfeed, the court held that its use of the photographs constitutes fair use, and dismissed the case.

Summary prepared by Tal Dickstein and Ava Badiee