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Copyright Files: Blogger’s Use of Copyrighted Photo Is ‘Transformative’ Use: Illinois Northern District Rules

July 21, 2015

 

‘Shuffle’ Case is Just in Time for Football Season
 

Since football season is upon us, I thought it would be appropriate to write about one of the most amazing football films ever made. No, it is not “Knute Rockne, All American” (1940) or “Rudy” (1993). It’s not “Friday Night Lights,” “The Blind Side” (2009) or even “Brian’s Song” (1971). It is “The Super Bowl Shuffle” (1985).


I know it is not really a film per se, but it has all the drama and artistry of “Remember the Titans” (2000). Denzel Washington is talented, but have you seen how back-up quarterback Steve Fuller delivers his lines flawlessly while awkwardly dancing the “Shuffle?” The screenplay of “Shuffle” is impeccable, and the musical score — well, it’s no wonder that the video was nominated for a Grammy in 1985 for best rhythm and blues performance by a group. Costume design? Check out punter Maury Buford’s broad-brimmed Panama hat as he plays the cowbell. It is classic.


The “Super Bowl Shuffle” has generated a fair amount of litigation over the years. In 2010 and 2012, Renaissance Marketing, the company that licenses the rights to “Shuffle,” brought copyright infringement suits against media giants Viacom and America Online for unauthorized use of the video. To Danielle Wysocki, a blogger, this seemed like news that was worthy of reporting to her followers.


Wysocki is the creator of a blog called The Jersey Chaser, which bears the tagline “Where women get sports.” She started the website in 2008 as entertainment for her friends and sorority sisters. It is not very active anymore — the last item that appears is from January 2013, announcing that Khloe Kardashian and Lamar Odom are rumored to be expecting a baby. (The reality television star and NBA player have long since split). But Wysocki’s website was active in 2010, when she posted a short item on the blog about Renaissance’s “Shuffle” suit against Viacom. In the story, she included a picture of the “Shuffle” DVD cover, which she downloaded from Google.


The photo, a group shot of some of the players, had been created for the original “Super Bowl Shuffle” video cover by a photographer named Don Levey. It also served as the cover shot for the 20th Anniversary DVD edition of “Shuffle.”


Just a month prior to posting the article on The Jersey Chaser, Wysocki had entered an “Affiliate and Advertising Agreement” with Yardbarker, a well-known sports website operated by Fox Sports Interactive Media. This agreement permitted Wysocki and Yardbarker to link to each other’s articles. It also allowed Wysocki to share some of Yardbarker’s advertising revenues attributable to her articles.


Yardbarker linked to Wysocki’s article reporting on the 2010 “Shuffle” lawsuit, including Levey’s photo. Neither Wysocki nor Yardbarker asked Levey for permission to use the photo. He sued Fox Sports, claiming that by linking to Wysocki’s unauthorized use, Fox Sports was liable for contributory copyright infringement. See, LeveyfFilm, Inc. v. Fox Sports Interactive Media, 2014 WL 3368893 (N.D. Ill.). Wysocki herself was not named as a defendant in the suit, perhaps because (as she later testified in a deposition) the blog was a hobby and she never made any money from the site.


There are several interesting facets of the case, including questions about contributory infringement for linking and about whether judges should take judicial notice of information gleaned from the Internet that was not raised by the parties. But that will have to wait for another day, as we talk about the issue of fair use.


Fox Sports cannot be contributorily or vicariously liable for copyright infringement if Wysocki’s use of the photo is protected by the fair use doctrine. This case raises an important issue in the age of new media: Should blogs be treated differently from more traditional forms of media in assessing fair use?


Section 107 of the Copyright Act codifies the centuries-old doctrine of fair use. That section states that the fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching,…scholarships, or research, is not infringement.” These categories are intended as examples of the types of use that might receive favorable treatment under the fair use doctrine upon considering all of the fair use factors. They are not intended to create per se categories of fair use. Fox Sports argued that Wysocki’s inclusion of the photo in her article about the 2010 “Shuffle” lawsuit was fair use. U.S. District Judge Thomas M. Durkin agreed and granted Fox’s motion for summary judgment.


The court found that the blogger’s use of the “Shuffle” cover photo to illustrate a story about the lawsuit was “transformative,” an important factor weighing in favor of fair use. A transformative use is one that does not merely supersede the original work, but instead “adds something new with a further purpose or of a different character.”


Wysocki’s use, to illustrate a blog article about a lawsuit, was entirely different from the work’s original use as a cover photo. Nor did it impair Levey’s market for licensing the photo for use as a wall poster. Wysocki did not present Levey’s photo as a high-quality reprint, but merely as a low-resolution copy of a photo that was already available on the Internet.


The court also said that even if Wysocki was interested in profiting from the use of the photo, such profit would have been derived from the market for news and gossip, not from Levey’s market for a high-quality portrait photo. These facts tipped the fair use scales in Wysocki’s favor.


Levey claimed that this was not fair use because Wysocki’s article on The Jersey Chaser was not “bona fide news reporting.” This raises an important question given that so much of our daily information comes from the “blogosphere.” It is a dangerous undertaking to argue that all blogs or even certain blogs should have a narrower scope of fair use than more traditional media outlets. Should use of the image be permissible on a New York Times blog but not on The Jersey Chaser? The court did not buy Levey’s attempted distinction.


The court’s ruling is not so broad as to serve as a free pass for any unauthorized use of photos by bloggers. The court noted that Wysocki used the DVD cover because a lawsuit about the DVD was the subject of her article. “To a dispositive degree, the photo — due to its attachment to the DVD cover of the video at the center of the lawsuit — had become the news story itself,” according to the ruling.


This limiting principle should provide a good balance between the rights of photographers to receive compensation for their copyrighted works and the interests of bloggers to provide (and the public to enjoy) robust and fair news reporting. The principle should apply regardless of whether the story is about serious issues, or is important only to aficionados of The Jersey Chaser. The fair use doctrine is designed for the benefit of Wysocki’s fans as well as devotees of Paul Krugman. As Justice Oliver Wendell Holmes wrote in a 1903 copyright decision, “the taste of the public is not to be treated with contempt.”

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