The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TOM HUSSEY PHOTOGRAPHY, LLC CIVIL ACTION
VERSUS No. 21-684
HEROFARM LLC SECTION I
ORDER & REASONS
Before the Court is defendant HEROfarm LLC’s (“HEROfarm”) motion1 to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Tom Hussey
Photography, LLC (“Hussey Photography”) opposes2 the motion. As explained below,
the Court denies the motion without prejudice to HEROfarm re-asserting its
affirmative defense of fair use.
This case arises from HEROfarm’s alleged unauthorized use of a series of
photographs to which Hussey Photography allegedly holds a valid copyright.
HEROfarm argues that dismissal is proper because, assuming arguendo that the
photographs were used on its website and that Hussey Photography holds the
copyright, HEROfarm’s use of the images is protected by the fair use doctrine.3 See
17 U.S.C. § 107.
“[T]he fair use doctrine is a statutory exception under the Copyright Act to the
generally exclusive set of rights given to copyright holders.” Estate of Barré v. Carter,
1 R. Doc. No. 9.
2 R. Doc. No. 14.
3 R. Doc. No. 9-1, at 7.
272 F. Supp. 3d 906, 930 (E.D. La. 2017) (Brown, J.). “Fair use is an affirmative
defense ‘that can excuse what would otherwise be an infringing use of copyrighted
material.’” Id. at 929 (quoting Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1238
(11th Cir. 2014)). “The burden of proof is on [a defendant] to establish the fair use
affirmative defense.” Id. (citing Harper & Row Publishers, Inc. v. Nation Enters., 471
U.S. 539, 546 (1985)).
“As a general matter, the Fifth Circuit has determined that Rule 12(b)(6)
motions to dismiss typically cannot be granted on affirmative defense grounds unless
‘a successful affirmative defense appears clearly on the face of the pleadings.’” Id. at
930 (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
Nonetheless, courts in the Fifth Circuit have occasionally determined that the
pleadings do clearly present such a fair use defense. See, e.g., id. at 931; Bell v. Eagle
Mountain Saginaw Indep. Sch. Dist., No. 20-1157, 2021 WL 1151706, at *6 (N.D. Tex.
Mar. 26, 2021) (granting a motion to dismiss in light of a successful fair use defense).
“The fair use analysis is a mixed question of law and fact and requires a case-
by-case determination [of] whether a particular use of a copyrighted work is fair.”
Carter, 272 F. Supp. 3d at 929 (gathering cases). “Section 107 provides a list of four
relevant but non-exclusive factors for courts to consider when conducting the fair use
analysis: (1) the purpose and character of the use; (2) the nature of the copyrighted
work; (3) the substantiality of the portion used in relation to the copyrighted work as
a whole; and (4) the effect on the potential market for or value of the copyrighted
work.” Id. at 929–30 (citing Harper & Row, 471 U.S. at 560–61). “No single factor
is determinative, and courts are instructed to weigh all the results together, in light
of the purpose of the Copyright Act, to determine whether the affirmative defense of
fair use has been established.” Jd. at 930 (citing Associated Press v. Meltwater U.S.
Holdings, Inc., 931 F. Supp. 2d 537, 549 (S.D.N.Y. 2013)). “In sum, ‘[t]he ultimate
test of fair use is whether the copyright law’s goal of promoting the Progress of Science
and useful Arts would be better served by allowing the use than by preventing it.”
Id. (quoting Associated Press, 931 F. Supp. 2d at 549).
The Court suspects, based on the pleadings, which it will not detail here, that
HEROfarm may well be able to satisfy that ultimate test. But the determination
must be made on a “case-by-case” basis. In this case, the Court simply does not have
enough before it to grant a motion to dismiss—particularly as to the fourth factor, the
effect of the alleged violation on the market for the photographs. Accordingly,
IT IS ORDERED that the motion is DENIED.
New Orleans, Louisiana, July 1, 2021.
edhe,
UNITED STATES DISTRICT JUDGE