Viral Is Still Copyrighted, Even to Learn Where Trump Is

While attending his friend’s wedding at the Trump National Golf Club in New Jersey in June 2017, Jonathan Otto took a photograph of a certain wedding crasher: the president himself.

Otto texted the photo to his friend, Sean Burke, another guest at the wedding. By the next morning, the image had gone viral and ended up on TMZ, CNN, the Washington Post, the Daily Mail, and a Hearst Communications’ publication, Esquire. Apparently, Burke had sent the photo to Linda Piatowski (a relative of the bride), she had posted it on Instagram, and the media outlets copied it from there.

The day after the media outlets published the photo, Otto registered it with the Copyright Office and filed suit in federal court (the Southern District of New York) against the media outlets that had published it. Everyone settled except Hearst. In a recent decision, the court rejected Hearst’s defenses across the board, finding instead that a media outlet cannot poach a photograph from social media, publish it without change, and avoid paying the photographer for the right to do so.

Ruling on the parties’ cross motions for summary judgment, the court granted Otto’s motion (which was directed to his claim of infringement and Hearst’s affirmative defenses, including fair use) and denied Hearst’s (which was directed to fair use and lack of willfulness). In particular, the court found that Otto owned a valid copyright in the photograph and that Hearst had infringed his copyright through its direct copying of the image without permission. Turning to Hearst’s defenses, the court then rejected Hearst’s argument that its publication of the photograph was transformative because it had been created for personal use but Hearst had used it for news. Instead, the court found that Hearst had published the image without adding “new information, new aesthetics, new insights and understandings,” and thus for the same purpose Otto had taken it—to capture something Otto thought was a newsworthy event. As a result, the court concluded, even though the publication of the photograph was factual, the news story containing it was little more than a description of the location of the image and therefore not transformative. He also found that the image’s having gone viral did not make Hearst’s use fair, noting that Otto recognized, two days after the wedding, that he might be able to register and license the image.

Next, the court found that when Otto sent the image to Burke, he neither waived his right to assert his copyright nor consented to the image being used by Burke and posted on social media—and then picked up by Hearst and other news outlets. The court concluded that no reasonable jury could find that sending the image to Burke without explicit restrictions constituted a license for Burke to use the image however he wished. The court further found that even if Otto had intended to allow Burke to disseminate the image, any such permission was not applicable to Hearst.

Finally, the court held that because a reasonable jury could differ on whether Hearst’s infringement was willful—allowing for statutory damages against Hearst of up to $150,000 per infringed work—Hearst’s motion for summary judgment that it did not act willfully had to be denied. Despite Hearst’s lack of actual knowledge of Otto’s ownership of the image, the court concluded that a reasonable jury could find that it had constructive knowledge, i.e., that it was “willfully blind” to whether it was committing copyright infringement. In reaching this conclusion, the court pointed to the fact that Hearst was in the publishing business, and thus had knowledge of copyright law and licensing procedures, as well as the fact that Hearst had been repeatedly sued for infringement in the recent past. Further, the court noted that while Hearst, in supporting its argument that it had not acted willfully, had pointed to the fact that the article credited Ms. Piatowski’s Instagram account as the source of the photo, that did not “carry as much weight as [Hearst] might hope.” As the court said, even if Hearst believed that Ms. Piatowski owned the photograph, nothing in the record showed that Hearst had attempted to contact her to solicit either a license for the photograph or her approval to use it.

The case continues towards trial, but with a number of the most important issues now decided in Otto’s favor.