Higbee & Associates scored another win on summary judgment. This time for its client Incredible Features, Inc against an online publisher, Back China.

The case involved the use of several of the plaintiff’s photos on a news site. The defendant’s business is based in Texas, but its advertising agreements with companies in California allowed for venue and jurisdiction in California.

The case is litigated in the Central District of California in the courtroom of the Honorable Dolly M. Gee. Judge Gee rejected all of the defendant’s defenses, including theories based on scenes faire, de minimis use, safe harbor, the statute of limitations, and fair use— ruling that all four factors weighed against fair use.

In analyzing the first factor of the fair use test, Judge Gee cited a pair of 2nd Circuit cases that were exactly on point. “It is well established that “the use of an image solely to illustrate the content of that image” is not fair use. Otto v. Hearst Commc’ns, Inc., 345 F. Supp. 3d 412, 428 (S.D.N.Y. 2018).” “Defendant’s articles “did not comment on, criticize, or report news about the Images themselves; instead, they used the Images as illustrative aids because they depicted the subjects described in its articles.” Barcroft Media, Ltd. v. Coed Media Grp., LLC, 297 F. Supp. 3d 339, 352 (S.D.N.Y. 2017)”

In analyzing the fourth, most critical prong, Judge Gee wrote, “If Defendant and others like it are allowed to use the Subject Images in the manner that it has—by publishing them in full with a description of their contents—Plaintiffs would lose most of their ability to market the works for their own commercial gain.”

A trial to determine the amount of damages and attorneys’ fees is set for February 2022. Judge Gee’s order can be seen and read here https://www.higbeeassociates.com/wp-content/uploads/2021/12/Higbee-Incredible-features-copyright-msj.pdf