By: Benjamin D. Bucinell
In Boesen v. United Sports Publications, Ltd., Case No. 20-CV-1552 (ARR) (SIL) (E.D.N.Y.), United Sports Publication (USP) prevails in a Copyright infringement claim by photographer, Michael Boesen related to a social media post. On December 6, 2019, Caroline Wozniacki, announced her retirement from professional Tennis on Instagram. This announcement was accompanied by a low resolution, cropped, version of a photograph, featuring Wozniacki early in her career. The original version of the photo was owned by Boesen. After Wozniacki’s Instagram post, USP ran a story on Wozniacki’s retirement announcement. The article embedded Wozniacki’s Instagram post, containing Boesen’s photograph. After seeing his photo was used by USP without permission, Boesen sued USP for copyright infringement. The US District Court held USP’s use of the image was fair.
A fair use analysis must include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Despite the District Court’s finding of fair use, the holding does not grant publishers the power to claim fair use any time they copy an image from a social media platform. The court reasoned that the image was used by USP to depict the Instagram post on which the article was reporting, rather than being used as a generic image of Wozniacki. Therefore, USP did not use the image for the purpose it was originally created. Since the copyrighted work was simply the subject of the news story, the function of the work was transformed in the new context. This transformation allowed usage of the image fall under fair use. The court also found USP’s status as a for-profit publisher, and the placement of the article alongside advertisements, to be inconsequential; finding no direct commercial exploitation from the use of the photo. Under this reasoning, the decision upholds the ability of news outlets to use copyrighted photos from social media posts, when the post itself is the subject of the news story.