# Castle v. Kingsport Publishing Corporation

> District Court, E.D. Tennessee · December 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10434172

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** December 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10434172

## How later opinions describe it (automated extraction)

- finding fair use is an affirmative defense, with the party claiming its application, carrying the burden of proof

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
GREENEVILLE DIVISION

BRIAN CASTLE, )
)
) 2:19-CV-00092-DCLC
Plaintiff, )
)
vs. )
)
KINGSPORT PUBLISHING )
CORPORATION, )
)

)
Defendant.
)

MEMORANDUM OPINION AND ORDER
Defendant Kingsport Publishing Corporation (Defendant) has filed a Motion for
Summary Judgment [Doc. 54]. Plaintiff has responded [Doc. 66]. Plaintiff Brian Castle also
filed a Motion for Partial Summary Judgment [Doc. 56], which Defendant opposed [Doc. 65].
Both motions address the same issue: whether Defendant’s use of Plaintiff’s Photograph violated
Section 501 of the Copyright Act, 17 U.S.C. § 101 et seq. The matter is now ripe for
adjudication.
I. FACTUAL BACKGROUND
The facts in this case are largely undisputed. In 2018, Sullivan County, Tennessee
decided to build a new high school, which turned out to be an unpopular decision at the time.
[Doc. 66-1, ¶ 22-23]. After construction began, a public debate ensued over whether they were
constructing the school over sinkholes [Doc. 66-1, ¶ 24-25]. It became a “hot topic” with the
Sullivan County Board of Education and in the community as a whole [Doc. 66-1, ¶ 28].
Numerous social media postings addressed the topic but because “no one could confirm them,”
Plaintiff set out to prove their existence with his drone [Doc. 66-1, ¶ 27]. Believing the
community should have “information about the construction site,” he flew his drone over the
site in July 2018, and took “a drone image,” which became the Photograph at issue in this case
[Doc. 66-1, ¶¶ 32- 33]. Plaintiff added the yellow descriptive text into the Photograph [Doc. 66-
1, ¶ 43]. Plaintiff believed his Photograph proved they were building the high school over
sinkholes [Doc. 66-1, ¶ 31].

On August 1, 2018, the Sullivan County Board of Education called a meeting to discuss
the issue of “potential sinkholes at the West Ridge High School construction site.” [Doc. 66-1, ¶
44]. Before the meeting, Plaintiff had the Photograph enlarged to 2 ft. x 5 ft. and gave it to
school board member Mark Ireson so that he could use it at the meeting [Doc. 66-1, ¶ 44-48].
The meeting was a “completely packed house” with people overflowing “out in the parking lot.”
[Doc. 66-1, ¶ 46]. Plaintiff attended the meeting and distributed about 10 copies of the
Photograph, which circulated in the crowd [Doc. 66-1, ¶ 50]. He was not, however, identified as
the source or creator of the handouts, and they did not contain any copyright notices. [Doc. 66-1,
¶ 53, 64].

At the meeting, board member Ireson displayed Plaintiff’s enlarged Photograph as
evidence of possible sinkholes at the site [Doc. 66-1, ¶ 59]. And while many believed the
Photograph showed evidence of the presence of sinkholes, the lead engineer did not [Doc. 66-1,
¶ 58, 60]. The geotechnical engineer for the project, Mr. Alex Merrit, however, explained that
the geologic formations in the Photograph were not sinkholes at all but “were a result of blasting
operations….” [Doc. 66-1, ¶ 60].
Plaintiff posted the Photograph and the drone footage on his Facebook page after the
BOE meeting [Doc. 66-1, ¶¶ 67-67]. There were at least 3,500 views of his drone footage and
Photograph on his Facebook page [Doc. 66-1, ¶ 70]. The day after the BOE meeting, on August
2, 2018, Plaintiff called a news outlet about licensing his Photograph. But he does not recall
which specific news or media outlets he contacted about a license [Doc. 66-1, {| 76-77]. In any
event, he never licensed the Photograph, nor did he make any money from the Photograph [Doc.
66-1, | 78].
On August 8, 2018, Defendant published a news article which republished the
Photograph Plaintiff had distributed as a handout at the BOE meeting on August 1, 2018 [Doc.
66-1, 4 88]. Defendant was unaware that Plaintiff had created the Photograph prior to using it in
their news story [Doc. 66-1, §] 89]. Its article was about the public debate over whether
geological formations depicted in the Photograph were the result of sinkholes or blasting during
the construction of the high school [Doc. 66-1, §] 92]. Plaintiff acknowledges that Defendant’s
use of the Photograph was for “news reporting.” [Doc. 66-1, J 90].
Defendant displayed the Photograph at the top of its news article. [Doc. 55-2, pg. 143].
Defendant’s article is reprinted here:
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Images of “anomalies” Sullivan County school board member Mark Ireson identified as potential sinkholes turned out to be the
result of rock blasting, an engineer told the school board Tuesday.
Engineer explains origin of ‘sinkholes’ on West Ridge High site

BLOUNTVILLE — The purported sinkholes on the site of Sullivan County’s
future high school turned out to be pits formed by blasting rock, an engineer says.
That’s how Alex Merritt on Tuesday night shot down the drone images school
board member Mark Ireson introduced last week, images Ireson presented as
“anomalies” needing further investigation as possible sinkholes and a reason to
delay awarding the construction bid for West Ridge High School.
Merritt, geotechnical engineer of record for the project and Tri-Cities branch
manager for GEOServices LLC, told the Board of Education the purported
sinkholes are nothing more than blasting pits left from dynamiting rock to level
the site of the new school, which is scheduled to open in the fall of 2020. One
photo indicated 139 F150 pickups would fit in the anomaly.
One pit was shown in drone photos Ireson shared with the BOE during a called
meeting to vote on the West Ridge construction contracts, the same pit also shown
in a drone video posted on Facebook. Merritt said that pit and a smaller one were
simply the result of blasting.
“That is not a karst-induced sinkhole. That is blasting operations,” Merritt told the
board after an introduction from architect Dineen West.
She had offered to call Merritt during last Wednesday’s called BOE meeting,
during which a roomful of mostly school opponents faced the board. However,
the BOE approved granting the low bids on the construction contracts totaling
almost $59.3 million, including $4.8 million to be paid from fund balance and the
rest from bond proceeds.
Merritt said that Ireson’s presentation at the called meeting focused on March
2017 information included in a bid packet and that additional investigation of
possible sinkholes on the site had been done.
“That further review has been completed,” Merritt said.
He said initially five core borings were done on the site, but that after the footprint
of the school was moved slightly, 12 new borings in “May or June” of this year
were completed.
Ireson said he had asked for the results of the additional investigations, but
Director of Schools Evelyn Rafalowski told him it “didn’t happen.”
After Merritt left, Ireson asked for the details on the second set of borings as well
as any potential additional areas of concern the drilling might have revealed. West
and Rafalowski said they would supply that information to the board.
After the meeting, West described the March 2017 “anomalies” language in bid
documents as boilerplate for any major construction project in sinkhole-prone
Northeast Tennessee.
During the BOE meeting, Rafalowski also presented a packet of documents
indicating the Tennessee Department of Education had no findings, issues or
problems with the way the school system has handled federal money for the past
three years.
Ireson had said that auditor Dustin Winstead had told him an investigation of
carryover federal funds and possible need for corrective actions would be
initiated, but Winstead’s boss, Maryanne Durski, wrote a letter dated Monday
saying that “no corrective actions were needed” on any federal audits.
“I think it was more of a misunderstanding than anything,” Rafalowski said.
[Doc. 55-2, pg. 143-45].
Defendant received about $15.20 from indirect advertisements based on web traffic to the
article [Doc. 66-1, ¶ 97]. It has not sold any copies of the Photograph or used it to promote or
increase traffic to its website. [Doc. 66-1, ¶ 95, 96]. Plaintiff contends he would have charged
Defendant $4,000 to $5,000 to license the Photograph, but readily admits he has never received
that kind of money for any of the photographs he has ever created [Doc. 66-1, ¶ 98-99].
Plaintiff sued Defendant under Section 501 of the Copyright Act, claiming that
Defendant reproduced without authorization his Photograph which Plaintiff owned and had
registered [Doc. 1, pg. 1]. Defendant filed a Motion to Dismiss, asserting a “fair use” affirmative
defense to Plaintiff’s case [Doc. 26]. The Court denied his motion [Doc. 46] finding that the
Court could not adequately address whether Defendant’s use constituted “fair use” simply on the
pleadings, without more contextual information. Since that denial, Defendant has filed its
Motion for Summary Judgment, claiming there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law.
II. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DOC. 54]
Defendant has filed a Motion for Summary Judgment [Doc. 54], claiming that its use of
Plaintiff’s Photograph as part of its on-line news story was “fair and impliedly licensed.” [Doc.
55, pg. 6]. It claims that Plaintiff “widely, and intentionally, published the photograph at issue
here before ever attempting to obtain a fee for it.” [Id.]. It claims that its news story simply

“recount[ed] the debate over what the photograph actually depicted, and displayed the
photograph given to the reporter.” [Id. at pg. 7].
In response, Plaintiff contends that Defendant’s use of his Photograph was not “fair use”
because Defendant used the Photograph “for the same purpose for which it was created, namely
to show an aerial view of the West Ridge High School construction site to determine whether
geological sinkholes existed (or not).” [Doc. 66, pg. 7]. Plaintiff claims Defendant did not report
“on any political or social controversy that arose because of the very existence of the photograph
itself.” [Doc. 66, pg. 10]. He argues that the Photograph was not controversial, but it was the
subject matter of the photograph that lends itself to controversy. [Doc. 66, pg. 13]. It is this

distinction that he claims makes all the difference. As a result, Plaintiff argues Defendant’s
motion should be denied.
III. STANDARD OF REVIEW
Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view
the facts contained in the record in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v.
Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The moving party bears the initial burden of
demonstrating that no genuine issue of material facts exists. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The burden then shifts to the nonmoving party to “come forward with
significant probative evidence showing that a genuine issue exists for trial.” McKinley v. Bowlen,
8 F. App'x 488, 491 (6th Cir. 2001). The nonmoving party “may not rest upon mere allegations

or denials of his pleading but must set forth specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A mere scintilla of
evidence is not enough; the Court must determine whether a fair-minded jury could return a
verdict in favor of the nonmoving party based on the record. Id. at 251-252.
IV. ANALYSIS
A. Introduction
The Copyright Act protects “original works of authorship fixed in any tangible medium
of expression.” 17 U.S.C. § 102(a). It provides that “[a]nyone who violates any of the exclusive
rights of the copyright owner … is an infringer of the copyright or right of the author….” 17

U.S.C. § 501(a). The owner of a copyright has exclusive rights to reproduce the work and in the
case of pictorial works, the owner can display the work publicly. 17 U.S.C. § 106. To state a
claim under the Copyright Act, the plaintiff must prove two elements: “(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.” Enchant
Christmas Light Maze & Market Ltd. v. Glowco, LLC, 958 F.3d 532, 563 (6th Cir. 2020)
(quoting Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
Plaintiff asserts that he has a valid copyright in the Photograph he made and presented to
school board member Mark Ireson. Indeed, he did register the Photograph but did not register
the same image with his textual and visual additions that he distributed at the BOE meeting,
which Defendant ultimately republished [Doc. 55-2, pg. 138; Doc. 55-2, pg. 143]. The focus of
Defendant’s motion is not so much on whether Plaintiff’s copyright is valid but on whether its
use in covering the controversy at the BOE meeting constituted “fair use” and not a violation of
Plaintiff’s exclusive right.
The Copyright Act requires a plaintiff to show the defendant violated at least one of the

exclusive rights granted to the copyright holder. 17 U.S.C. § 106. In this case, Plaintiff contends
that Defendant violated his right to display the Photograph exclusively by reproducing it on its
webpage in the news story it covered regarding the controversy that occurred at the school board
meeting on August 2, 2018. Defendant reproduced the Photograph in its news story covering the
school board controversy. It contends, however, that it cannot be held liable because its use is
covered by the “fair use” doctrine.
B. Fair Use Analysis
The rights granted to copyright holders under the Copyright Act are not absolute but are
qualified by “limitations on exclusive rights.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S.

519, 523, 133 S.Ct. 1351, 185 L.Ed.2d 392 (2013) (citing 17 U.S.C. §§ 107–22). Fair use is a
statutory exception to copyright infringement. Princeton Univ. Press v. Mich. Document Servs.,
99 F.3d 1381, 1390 fn. 5 (6th Cir. 1996)(finding fair use is an affirmative defense, with the party
claiming its application, carrying the burden of proof). The Copyright Act provides that “the fair
use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching
..., scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. The factors
the statute requires the Court to consider 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.

17 U.S.C. § 107. It is a mixed question of law and fact. Harper & Row, Publishers v. Nation
Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). The statute requires the
Court to engage in a “case-by-case determination of whether a particular use is fair.” Id. at 549.
Where the “facts are sufficient to evaluate each of the statutory factors,” the Court can decide the
fair use issue. Id. The Court will now turn to the statutory factors.
1. Purpose and Character of the Use
The first statutory factor looks at the “purpose and character” of Defendant’s use of
Plaintiff’s copyrighted work. This includes consideration of “whether the new work is
‘transformative,’ and whether the use of that work is for commercial or noncommercial
purposes.” Balsley v. LFP, Inc., 691 F.3d 747, 758 (6th Cir. 2012)(citations and quotations
omitted). The Court should look to “whether the new work … adds something new, with a
further purpose or different character, altering the first with new expression, meaning, or
message.” Campbell, 510 U.S. at 579. If the work is “merely retransmitted in a different
medium” or if the secondary use is “the same as the original use,” the new work is not
transformative. Balsley, 691 F.3d at 758 (citing Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19
(9th Cir. 2003)).
Defendant contends here that it materially transformed the nature and meaning of
Plaintiff’s Photograph by adding news commentary about the controversy Plaintiff’s Photograph
generated at the school board meeting. It claims its purpose was to report that the Photograph
did not depict what school board member Ireson claimed it depicted. On the other hand, Plaintiff
argues Defendant’s secondary use was not transformative “because Defendant did not report on
any political or social controversy that arose because of the very existence of the photograph
itself.” [Doc. 66, pg. 10]. He argues, instead, Defendant “merely used the photograph to
illustrate a descriptive news story about whether the holes in the ground at the construction site
constituted geographic sinkholes or man-made holes.” [Doc. 66, pg. 10].

Defendant’s use of the Photograph was for news reporting, and Plaintiff does not dispute
that [Doc. 66-1, ¶ 90]. The caption under the Photograph provides: “Images of ‘anomalies’
Sullivan County school board member Mark Ireson identified as potential sinkholes turned out to
be the result of rock blasting, an engineer told the school board Tuesday.” [Doc. 55-2, pg. 143].
Rather than simply using the Photograph to illustrate a “descriptive news story,” Defendant was
going to the heart of the controversy with its commentary. School board member Ireson used the
2 ft. x 5 ft. enlarged Photograph to show the members of the BOE, and for that matter, the public,
that these anomalies were sinkholes and warranted further investigation. Many believed that the
Photograph showed the presence of sinkholes. [Doc. 66-1, ¶ 58]. That generated a significant

controversy which would have obviously impacted the continued construction of the new school.
Defendant did not merely reprint the Photograph in a different medium with nothing more, and it
did not republish the Photograph adopting Plaintiff’s view of what it depicted. It presented a
contrary view – that of the geotechnical engineer over the construction project. Defendant
explained that “[t]he purported sinkholes … turned out to be pits formed by blasting rock, an
engineer says. That’s how Alex Merritt … shot down the drone images … Ireson introduced last
week, images Ireson presented as ‘anomalies’ needing further investigation as possible
sinkholes….” [Doc. 55-2, pg. 143](emphasis added). Again, the focus was on a contrary view
of the drone images that Ireson was claiming justified further investigation Defendant’s use
brought new meaning to the Photograph and directly challenged Ireson’s and Plaintiff’s
interpretation of the Photograph.
A secondary use “can be transformative in function or purpose [even] without altering or
actually adding to the original work.” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756
F.3d 73, 84 (2d Cir. 2014) (quotation omitted). Defendant did not alter Plaintiff’s Photograph,

but its use differed from that of Plaintiff. Plaintiff used the Photograph to show “whether the
reported sinkholes actually existed at the proposed location for the new high school.” [Doc. 66,
pg. 6]. He claims, however, that Defendant “used the Photograph to merely illustrate a news
story about the subject matter depicted in the image.” [Doc. 66, pg. 13]. But Defendant did not
use the Photograph for that purpose at all. Rather, it used it to address issues of public concern
generated as a result of Ireson’s presentation to the BOE, which included the use of the
Photograph to prove his point. It was the Photograph that the engineer rebutted and it was that
rebuttal that Defendant’s news story was about. See Philpot v. Media Research Center, 279
F.Supp.3d 708, 714-15 (E.D.Va. 2018)(finding fair use because, in part, the defendant had used

the image to address “issues of public concern”).
The preamble to Section 107 specifically identifies “news reporting” as not an
infringement of a copyright. But Plaintiff claims this “only applies to news reporting of the
copyrighted work itself[] not news reporting about the subject matter depicted in the image.”
[Doc. 66, pg. 11](citing Barcroft Media, Ltd. v. Coed Media Grp., LLC, 297 F. Supp. 3d 339,
352 (S.D.N.Y. 2017)). Barcroft does not help Plaintiff here. Barcroft noted that a display of an
image may be transformative “where the use serves to illustrate criticism, commentary, or a news
story about that work.” Barcroft Media, Ltd., 297 F. Supp. 3d at 352. But that is what
Defendant did, reporting on the various criticism about what the Photograph depicted. Ireson and
Plaintiff claimed the image showed sinkholes, the engineer said blasting pits. Defendant did not
use the Photograph as an “illustrative aid” to show the presence of sinkholes.
Under this factor, the Court also considers whether Defendant’s use was for commercial
purposes. To be sure, Defendant received about $15.20 from indirect advertisements based on
the web traffic its website received from views of the article. [Doc. 66-1, ¶ 97]. The

significance of commercialism on fair use decreases “the more transformative the work” is.
Campbell, 510 U.S. at 579. In Campbell, the Supreme Court noted that the weight to give
commercialism “will vary with the context….” Id. at 585. In other words, it is not dispositive.
In Campbell, the Supreme Court reversed the decision of the lower court because it had given
“dispositive weight to the commercial nature” of the work. Id. at 584. The Supreme Court held
that the “commercial … purpose of a work is only one element of the first factor enquiry into its
purpose and character.”1 Id. Taking that cue from Campbell, on balance, commercialism does
not play a significant role in this case. Unlike in Balsley, where the defendant made over one-
million dollars on the sales of the magazine that contained the pirated photograph, Defendant

made less than $20.00. Balsley, 691 F.3d at 771.
2. Nature of the Copyrighted Work
The second factor addresses the “nature of the copyrighted work.” 17 U.S.C. § 107(2).
“This factor calls for recognition that some works are closer to the core of intended copyright
protection than others, with the consequence that fair use is more difficult to establish when the
former works are copied.” Campbell, 510 U.S. at 586. Under this factor, the Court considers

1 As the Supreme Court in Campbell noted, “[i]f, indeed, commerciality carried presumptive
force against a finding of fairness, the presumption would swallow nearly all of the illustrative
uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, …
since these activities are generally conducted for profit in this country.” Id. at 584 (quotations
and citations omitted).
whether the work was (1) “factual or creative” and (2) published or unpublished. Balsley, 691
F.3d at 760; Cariou v. Prince, 714 F.3d 694, 709-10 (2d Cir. 2013). “Fair use of expressive or
creative works is more difficult to establish than fair use of factual or informational works, and
the fair use defense is narrower when applied to unpublished works than when applied to
published works.” Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d

312, 327 (S.D.N.Y. 2019)(citing Cariou, 714 F.3d at 709-10). As with the first factor, the
significance of the second factor diminishes where the secondary work is transformative. Id.
The Photograph is a drone image of a construction site. Plaintiff’s purpose in taking it
was to show the existence of sinkholes. Plaintiff admits that the Photograph is not a product of
artistic choice and expression [Doc. 66-1, ¶¶ 36-42]. He admits that “anyone [] could have taken
drone shots of the construction site [Doc. 57, pg. 14]. His claim to creativity here relates to his
skill operating the drone [Doc. 66, pg. 13]. Even though Plaintiff diminishes his role in taking
the Photograph, photographs can be creative and worthy of protection even if from a drone.
Photograph images can be creative. In this context, however, the Photograph was intended to

convey information and not the result of creative expression.
The Court also looks to see if the Photograph had been published. Plaintiff had
previously published it at the BOE meeting, in handouts he distributed at the meeting, and on his
Facebook page. While this favors a finding of fair use, this factor “rarely play[s] a significant
role in the determination of a fair use dispute.” Authors Guild v. Google, Inc., 804 F.3d 202, 220
(2d Cir. 2015).
3. Amount and Substantiality of the Portion Used
The third factor addresses “the amount and substantiality of the portion used in relation to
the copyrighted work as a whole.” 17 U.S.C. § 107(3). “[T]he extent of permissible copying
varies with the purpose and character of the use.” Campbell, 510 U.S. at 586-87. The focus here
is on whether the copying is “reasonable in relation to the purpose of the copying.” Id. at 586. In
this case, Defendant used the entirety of the Photograph. Plaintiff contends Defendant’s copying
was “more than what was necessary to effectuate its purpose.” [Doc. 66, pg. 14]. But he does
not explain why. Plaintiff’s enlarged Photograph was used at the BOE meeting as evidence that

the construction site was ridden with sinkholes. Defendant’s article reported on the view held by
the lead engineer, which contradicted the view Ireson had at the BOE meeting. In this context,
Defendant’s copying the Photograph in its entirety was reasonable and consistent with its
purpose of providing another explanation for the anomalies shown in the Photograph. That
Defendant used the entire Photograph “does not necessarily weigh against fair use because
copying the entirety of a work is sometimes necessary to make a fair use of the image.” Bill
Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). That is the case
here.
4. Effect of the Use Upon the Market for or Value of the Original

The final fair use factor considers “the effect of the use upon the potential market for or
value of the copyrighted work.” 17 U.S.C. § 107(4). This factor “requires courts to consider not
only the extent of market harm caused by the particular actions of the alleged infringer, but also
‘whether unrestricted and widespread conduct of the sort engaged in by the defendant would
result in substantially adverse impact on the potential market’ for the original.” Campbell, 510
U.S. at 590, 114 S.Ct. 1164. “[W]hen … the second use is transformative, market substitution is
at least less certain, and market harm may not be so readily inferred.” Campbell, 510 U.S. at
591. “The more transformative the secondary use, the less likelihood that the secondary use
substitutes for the original.” Castle Rock Entm't, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 145
(2d Cir. 1998)(citing Campbell, 510 U.S. at 591). There exists a “close linkage between the first
and fourth factors, in that the more the copying is done to achieve a purpose that differs from the
purpose of the original, the less likely it is that the copy will serve as a satisfactory substitute for
the original.” Authors Guild v. Google, Inc., 804 F.3d 202, 223 (2d Cir. 2015).
Plaintiff argues that Defendant’s copying of the Photograph supplanted the market in

which Plaintiff had a reasonable expectation to earn licensing revenue. Plaintiff has not shown
there is even a potential market for a drone image of a high school construction site in Sullivan
County, Tennessee that attempts to show the existence of potential sinkholes [Doc. 66-1, ¶¶ 73-
79]. It is undisputed that he has not earned anything from the Photograph, and the one outlet he
contacted in an attempt to license the Photograph was not interested [Id.]. Moreover, the purpose
to which Defendant used the Photograph differed than that of Plaintiff, reducing the likelihood
that it would be a satisfactory substitute for the original. Authors Guild, 804 F.3d at 223.
Defendant has not usurped the market for Plaintiff’s work. To be sure, Defendant’s use was
commercial but only to the extent reporting on the news is commercial. Defendant only

generated $15.20 from indirect ad revenue from its webpage. Thus, it seems obvious that
Defendant’s use of Plaintiff’s Photograph did not have a “substantially adverse impact on the
potential market for the original.” Campbell, 510 U.S. at 590.
On balance, Defendant’s use of Plaintiff’s Photograph provided a benefit to the
community as it used the Photograph in a story about a topic of public concern. Its use was
transformative because it provided a different interpretation of the Photograph than Plaintiff’s
purpose, which was to show the existence of sinkholes at the construction site. The Photograph
was informative and had already been published when Defendant republished it. That Defendant
used the Photograph in its entirety does not weigh against it in this context. Finally, Defendant’s
use did not have any adverse effect on the market for Plaintiff’s Photograph. In consideration of
these statutory factors, the Court holds that as a matter of law Defendant’s use of Plaintiff’s
Photograph was fair.2
V. CONCLUSION
For the above reasons, the Court GRANTS Defendant’s motion for summary judgment

[Doc. 54]. The Court DENIES Plaintiff’s motion for partial summary judgment [Doc.56]. The
Court DISMISSES Plaintiff’s copyright claim with prejudice. The Clerk is directed to close the
case. A separate judgment shall enter.
SO ORDERED.

s/Clifton L. Corker
United States District Judge

2 The Court finds it unnecessary to address Defendant’s arguments that Plaintiff had impliedly
licensed the Photograph to them based on his distribution of the Photograph at the BOE meeting.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434172. Public record. Not legal advice.