Vedros

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NICK VEDROS, No. 4:24-CV-02183

Plaintiff, (Chief Judge Brann)

v.

THE STERLING GROUP OF THE

TWIN TIERS, INC.,

Defendant.

MEMORANDUM OPINION

MAY 14, 2026

I. BACKGROUND

Plaintiff Nick Vedros (“Plaintiff”), a photographer, filed a one-count

complaint against Defendant The Sterling Group of the Twin Tiers, Inc.

(“Defendant”) for a copyright dispute arising out of Defendant’s unauthorized use

of Plaintiff’s photograph on Defendant’s website.1

On January 5 and 6, 2026, Defendant and Plaintiff moved, respectively, for

summary judgment. Specifically, Defendant raised the affirmative defense of the

Fair Use Doctrine under 17 U.S.C. § 107. Both parties have submitted multiple briefs

in support of their own motion and in opposition to the other’s.2

1 Doc. 1 (“Compl.”).

2 Docs. 20 (Plaintiff Br. in Supp.); 23 (Defendant Br. in Supp.); 25 (Defendant Br. in Opp.); 27

The dispute is now ripe for resolution. For the reasons stated below, Plaintiff’s

motion for summary judgment is granted as to Plaintiff’s copyright claim and as to

Defendant’s affirmative defense. Defendant’s motion for summary judgment is

denied on both fronts; Defendant’s affirmative defense fails as a matter of law.

II. LAW

A. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”3 Material facts are those “that

could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence

exists from which a rational person could conclude that the position of the person

with the burden of proof on the disputed issue is correct.”4 A defendant “meets this

standard when there is an absence of evidence that rationally supports the plaintiff’s

case.”5 Conversely, to survive summary judgment, a plaintiff must “point to

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”6

3 FED. R. CIV. P. 56(a).

4 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).

5 Clark v. Mod. Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993).

6 Id.

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”7 the Court “must view the facts

and evidence presented on the motion in the light most favorable to the nonmoving

party.”8 Moreover, “[i]f a party fails to properly support an assertion of fact or fails

to properly address another party’s assertion of fact as required by Rule 56(c),” the

Court may “consider the fact undisputed for purposes of the motion.”9 Finally,

although “the court need consider only the cited materials, . . . it may consider other

materials in the record.”10

The standard of review for cross-motions for summary judgment is identical

to the typical standard for summary judgment motions.11 “When confronted with

cross-motions for summary judgment . . . ‘the court must rule on each party's motion

on an individual and separate basis, determining, for each side, whether a judgment

may be entered in accordance with the summary judgment standard.’”12

B. Statement of Facts

With that standard outlining the Court’s framework for review, I now turn to

the facts, which are largely undisputed.

7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (quoting Schuylkill & Dauphin Imp.

Co. v. Munson, 81 U.S. 442, 448 (1871)).

8 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).

9 FED. R. CIV. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

10 FED. R. CIV. P. 56(c)(3).

11 Lawrence v. City of Phila., 527 F.3d 299, 210 (3d Cir. 2008).

12 Arsdel v. Lib. Life Assur. Co. of Bos., 267 F. Supp. 3d 538, 545 (E.D. Pa. 2017).

Plaintiff is an experienced and accomplished photographer who frequently

produces humorous, animal-based work for commercial advertising.!* Plaintiff's

photography sessions and overall production expenses can take several thousand

dollars to create, with some requiring over $100,000.’ One of Plaintiff's

photographs in particular, which is the subject of the instant dispute, depicts a dog

placing its front paws on a scale with a cat nearby, and shows both animals looking

at the dog’s weight (“the photograph”).!> The photograph has been reproduced

below for context.

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16

Plaintiff could not locate the invoice for the photograph’s creation due to the

passage of time, but testifies that it was specifically created for a dog food

13, Doc. 21 at 2-4, 6.

4 Id. at § 14.

1S See Doc. 21-1 (Exhibit 1, “the photograph”).

16 Id.

advertising campaign.17 The advertising campaign targeted dogs that needed to lose

weight, offering a specially formulated food, and Plaintiff rendered this concept

artistically by removing the dog’s collar and placing it next to the scale.18 Plaintiff

published the photograph in 2007 and registered it with the United States Copyright

Office on April 22, 2014 with the name “071015_DogStandingOnScale.”19

Defendant owns and operates a business involved in the sale of English

Labrador Puppies, operating under the name Endless Mt. Labradors at the website

domain emlabradors.com.20 One tab of this website, entitled “BLOG,” displays a

series of articles on canine-related topics, mostly authored by “Donna Stanley”

(“Mrs. Stanley”).21 One article in particular, that in dispute for the instant case, was

published on February 4, 2016, entitled “A Breeder’s Note on Canine Obesity” (“the

article”).22 The article discussed the benefits of feeding dogs a paleo or raw diet.23

At the top of that article, Defendant displayed a copied version of the photograph,

without a photographer credit to Plaintiff.24 The photograph was reproduced in its

entirety, without alteration.25 At some point during litigation, the photograph was

17 Doc. 21 at ¶ 15.

18 Doc. 21 at ¶¶ 11-12.

19 Doc. 21-2 (Exhibit 2).

20 Doc. 14 at ¶ 2.

21 Doc. 19-4; see also Blog, ENDLESS MT. LABRADORS, https://emlabradors.com/blog/ (last

visited May 05, 2025).

22 Doc. 19-4.

23 Doc. 14 at 4-5.

24 Doc. 24 at ¶ 13.

25 Doc. 24 at ¶ 16.

removed from the article’s header; at that time, the article had forty-three (43)

views.26

C. Copyright Infringement

As both parties have moved for summary judgment,27 the Court will first

address the merits of Plaintiff’s underlying claim and then turn to Defendant’s

affirmative defense.

26 Doc. 24-1. Plaintiff has submitted a hyperlink under Defendant’s domain which still links to

the photograph. See Doc. 16 at ¶¶ 14-15. However, the Court is unsure whether that subdomain

is public and how Plaintiff located it. It appears to the Court that this link is some form of

moderator link for uploading and downloading content to the rest of the website, as the Court

was not able to relocate that link through the website’s user interface. Defendant has submitted

testimony that the photograph was taken down. Doc. 24-1. Given that no other testimony has

been presented, the Court resolves this in the light most favorable to Defendant, resulting in an

inference that the photograph was taken down and is no longer publicly available.

27 Defendant argues in its brief in opposition that Plaintiff has not moved for summary judgment

as to Defendant’s affirmative defense of the fair use doctrine. Doc. 25 at 1-2. The Court will

decline to adopt such a formalistic view of these motions. It is clear from Plaintiff’s briefing

that Plaintiff intended to move for summary judgment both on their underlying claim for

copyright infringement and as to Defendant’s affirmative defense, as Plaintiff addressed the

fair use doctrine at length in their brief in opposition. See Doc. 27 (Plaintiff Br. in Opp.) at 15

(requesting that the Court dismiss Defendant’s fair use affirmative defense as a matter of law);

see also Doc. 15 (Mot.) at 1 (moving for summary judgment “on the issue of liability”); Doc.

28 (Plaintiff Reply Br.) at 3-4 (asserting that the affirmative defense fails as a matter of law

and Plaintiff is entitled to summary judgment on it). The Court will therefore treat the case “as

if cross-motions for summary judgment were filed.” See Clauss v. Plan, 196 F. Supp. 3d 463,

466 (M.D. Pa. 2016) (where Plaintiff did not file a motion for summary judgment but did

request judgment against Defendant, the Court treated the issue as a formal motion for

summary judgment).

Additionally, even if Plaintiff had not moved for summary judgment on the affirmative

defense, the Court would be justified in granting summary judgment on the issue sua sponte,

as Defendant has already addressed the affirmative defense in their own motion for summary

judgment. See Acumed LLC v. Advanced Surgical Servs. Inc., 561 F.3d 199, 223-24 (3d Cir.

2009). Parties’ motions and briefs clearly address the issue of the fair use defense, and the

Court will therefore construe Plaintiff’s briefings as not only a motion for summary judgment

on their own claim but also on Defendant’s affirmative defense.

Plaintiff brings one claim of copyright infringement under 17 U.S.C. § 501.28

For this claim, Plaintiff must show that “(1) [he] owns a valid copyright and (2)

[Defendant] copied protected, original elements without authorization.”29

Plaintiff has presented evidence sufficient to prove each element. Plaintiff has

submitted the copyright for the photograph which lists Plaintiff as the owner,30 and

evidence of Defendant’s copying and republishing of the photograph on Defendant’s

website.31 Defendant does not dispute that Plaintiff has proven both elements, only

raising the fair use doctrine as an affirmative defense.32 Accordingly, Defendant has

waived argument as to Plaintiff’s underlying copyright infringement claim.33

D. Fair Use Doctrine

Defendant raises the fair use doctrine as an affirmative defense, which

provides the main source of dispute for the instant motion.34 The fair use doctrine is

“‘an equitable rule of reason that permits courts to avoid rigid application of the

copyright statute when, on occasion, it would stifle the very creativity which that

28 Doc. 1 at Count I.

29 Pyrotechnics Mgmt., Inc. v. XFX Pyrotechnics LLC, 38 F. 4th 331, 335 (3d Cir. 2022).

30 Doc. 19-2 at 2-3.

31 Doc. 19-4 at 3-4.

32 Defendant filed a brief in support of their own motion, Doc. 23, that they incorporated into a

brief in opposition of Plaintiff’s motion as well, Doc. 25. These two briefs only raise the issue

of the fair use affirmative defense, and do not assert in any capacity that Plaintiff has not made

out a case for copyright infringement. Docs. 23, 25 at passim.

33 Yanoski v. Silgan White Cap Americas, LLC, 179 F. Supp. 3d 413, 426 (M.D. Pa. 2016) (“It is

well-established that a party's failure to argue an issue on summary judgment constitutes a

waiver of that issue.”).

34 Doc. 7 at ¶ 59; Doc. 20 (Plaintiff’s Br. in Supp.); Doc. 23 (Defendant’s Br. in Supp.).

law is designed to foster.’”35 “As codified at 17 U.S.C. § 107, ‘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.’”36 As an

affirmative defense, the party asserting fair use bears the burden of proof.37

The Copyright Act sets out four, nonexclusive factors for courts to consider

when determining the applicability of the fair use doctrine.38 These factors are:

(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.”39

35 Am. Soc. For Testing & Materials v. UpCodes, Inc., 172 F.4th 253, 261 (3d Cir. 2026) (“Am

Soc. II”) (quoting Google LLC v. Oracle Am., Inc., 593 U.S. 1, 18 (2021)) (internal quotation

omitted). See also Am. Soc., 752 F. Supp. 3d 480, 498 (E.D. Pa. 2024) (“Am. Soc. I”).

36 Am. Soc. II, 172 F.4th at 261 (quoting Video Pipeline, Inc. v. Buena Vista Home Ent., Inc., 342

F.3d 191, 197 (3d Cir. 2003), abrogated on other grounds by TD Bank N.A. v. Hill, 928 F.3d

259 (3d Cir. 2019)).

37 Id.

38 Id.; 17 U.S.C. § 107.

39 Id.; 17 U.S.C. § 107.

“All factors ‘are to be explored, and the results weighed together, in light of the

purposes of copyright.’”40 Fair use is quite dependent on context, as this is not an

area susceptible to bright-line rules.41

1. Factor One: The Purpose and Character of the Use

The first fair use factor compares the purpose and character of the infringing

use to the original.42 This factor addresses “‘the reasons for, and nature of, the

copier’s use of an original work,’”43 with two main considerations: whether the

infringing use is commercial in nature, and whether the infringing use transforms

the original work.44 This factor is not dependent on subjective intent; rather, it is an

“‘objective inquiry into what use was made, i.e., what the user does with the original

work.’”45

This first factor, purpose of use, “necessarily relates to the ‘justification’ for

the use.”46 “Broadly, a use with a distinct purpose is ‘justified’ because it is more

40 Id. (quoting Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 306 (3d Cir. 2011)).

41 Id. (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)).

42 Id.

43 Id. (quoting Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 528

(2023) (“Goldsmith”).

44 Id. at 262-264.

45 Am. Soc. II, 172 F.4th at 262.

46 Am. Soc. II, 172 F.4th at 262 (quoting Goldsmith, 598 U.S. at 531). Previously, “bad faith” had

been a relevant consideration for this factor as well. Warren Pub. Co. v. Spurlock, 645 F. Supp.

2d 402, 417 (E.D. Pa. 2009) (referencing Harper & Row, 471 U.S. at 562). The Supreme Court

has since called into question whether bad faith should be part of the determination. Campbell,

510 U.S. at 585 n.18. The Third Circuit recently analyzed fair use, and discussed “justification”

as part of the transformative use factor rather than assessing bad faith as an independent sub-

factor for purpose and character of the infringement. Am. Soc. II, 172 F.4th at 265.

likely to further the goals of copyright without lessening the incentive to create.”47

“More narrowly, whether a use has a compelling ‘independent justification’ for

copying—like needing to mimic a song to create a parody—is relevant under the

first factor, particularly when the original and the copy ‘share the same or highly

similar purposes.’”48 However, the law “imposes no requirement that a work

comment on the original” to be transformative; in some instances, like news

reporting, “the ‘need to convey information to the public accurately’ makes it

preferable and compatible with copyright law for a defendant to ‘faithfully

reproduce an original work without alteration.’”49

a. Commercial Nature

The first consideration under the purpose and use factor is whether a work is

commercial or noncommercial in nature. While not alone determinative, an

infringing work that serves noncommercial purposes is more likely to qualify for fair

use.50 However, courts should consider both direct and indirect monetary benefits

when analyzing this factor, as “indirect commercial advantage is also relevant to

assessing commerciality, but it carries less weight than evidence of direct profit.”51

47 Am Soc. II, 172 F.4th at 262 (quoting Goldsmith, 598 U.S. at 531).

48 Id.

49 Harbus v. Manhattan Inst. For Policy Rsch., 19 Civ. 6124, 2020 WL 1990866, at *4 (S.D.N.Y.

Apr. 27, 2020) (similarly dealing with a copyrighted photo used at the top of an article).

50 Am. Soc. II, 172 F.4th at 265-66.

51 See Am. Soc. II, 172 F.4th at 266; Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006) (noting

that the “commercial/nonprofit dichotomy concerns the unfairness that arises when a

secondary user makes unauthorized use of copyrighted material to capture significant revenues

as a direct consequence of copying the original work.”); FameFlynet, Inc. v. Jasmine Enters.,

For instance, “tangential benefits” from copying which could indirectly bolster a

company’s commercial performance are relevant considerations.52 “The crux of the

profit/nonprofit distinction is not whether the sole motive of the use is monetary gain

but whether the user stands to profit from exploitation of the copyrighted material

without paying the customary price.”53

There is insufficient evidence in the record from which Defendant could meet

its burden to show that this was a noncommercial use. Defendant touts that the photo

was used on an article posted on the “blog” section of the website, and the article

describes the detriments of canine obesity.54 That, however, is where the

“educational” purposes end. The article recommends buying natural dog food,55 and,

on another tab on the website, Defendant sells natural dog food.56 The canine focused

article is also related to the main business purpose of the website, selling labradors.57

Inc., 344 F. Supp. 3d 906, 911-912 (N.D. Ill. 2018) (where “[defendant] attempt[ed] to

distinguish its blog from its website and suggest that the blog could be considered to be for

‘nonprofit educational purposes,’” but failed to present affirmative evidence of such claims to

carry its burden under fair use).

52 Am. Soc. II, 172 F.4th at 265; see also Stross v. Stone Textile, 1:18-CV-454, 2019 WL 4060888,

at *4 (W.D. Tex. June 27, 2019) (“Here, the blog is conducted under the auspices of

[defendant’s] business, promoting [defendant’s] brand, rather than under a separate non-profit

entity with purely journalistic or educational purposes. Indeed, the blog itself links to

[defendant’s] commercial website.”).

53 Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 562 (1985); Am. Soc. II, 172 F.4th at

265 (quoting Harper).

54 Doc. 21-4.

55 Doc. 21-4.

56 See Life’s Abundance Dog Food, ENDLESS MT. LABRADORS,

https://emlabradors.com/httpslifesabundancecompetslifesabundancelifesabundancedogaspxre

alname20210230categoryallstagedogfood-v11pet-base/ (last visited May 05, 2025).

57 Doc. 21-4; see also Upcoming Litters, ENDLESS MT. LABRADORS,

https://emlabradors.com/upcoming-litters/ (last visited May 05, 2025).

Indeed, the title of the article is “A Breeder’s Note On Canine Obesity,” calling

attention to the fact that the author is herself a dog breeder.58 Other tabs on the

website also link to products for purchase related to homeopathic dog health

treatments.59 The blog is not an independently run educational blog, nor has

Defendant provided any evidence that the business is a non-profit entity.

Moreover, the photo itself is, at best, only tangentially related to the article’s

educational purposes. The article alone provides any realized educational benefit,

while the photograph is merely an attention-getting thumbnail.60 The article does not

describe or interact with the photograph at all, nor is the photograph asserting

anything of educational value.61 It is clearly intended as a humorous depiction of two

animals rather than an informational pictograph.

In support of its contention that the infringement was for noncommercial

purposes, Defendant submitted an affidavit by Jonathan Stanley (“Mr. Stanley”), the

owner of Sterling Group, which states repeatedly that the photograph was used for

educational purposes.62 This affidavit suffers from several deficiencies. First, most

of Mr. Stanley’s testimony, which repeats in various forms that the use was

“noncommercial” and for “educational” purposes, is conclusory in nature and need

58 Doc. 19-4.

59 The “Essential Oils For Pets” tab links to a website selling, unsurprisingly, essential oils for

pets. Olia Essential Oils For Pets, https://www.oliaforpets.com/ (last visited May 05, 2025).

60 See Doc. 14 at ¶ 5 (stating that the photograph was displayed “for illustrative purposes”).

61 By the Court’s assessment, the dog in the photograph is not even obese.

62 Doc. 14 at 2-4.

not be credited.63 Moreover, there is a significant lack of foundation from which the

Court can determine Mr. Stanley’s basis for asserting the use was noncommercial.

Other than his status as owner of Sterling Group, he provides no facts demonstrating

his source of knowledge for why or how that graphic was chosen.64 Indeed, it was

Mrs. Stanley, his wife, who authored the article and presumably chose the graphic.65

There is no testimony in the record regarding Mrs. Stanley’s intention for the

infringement, or any facts to support Mr. Stanley’s conclusory assertions that the use

was intended to be noneconomic.66

Even if Defendant’s affidavit could be credited, this single assertion that the

use was intended to be noneconomic is insufficient to create a genuine dispute of

material fact. The inquiry for this factor is objective, not subjective.67 Objectively,

63 See Doc. 14 at ¶ 3 (“The photograph was included solely to illustrate educational content for

the benefit of the public”); at ¶ 4 (“The use of the photograph was noncommercial in nature . .

. . The photograph was used in a manner consistent with educational, informational and public

interest purposes”); at ¶ 7 (“The Sterling Group acted in good faith in the use of the photograph

for educational purposes”); at ¶ 8 (“The educational content, including the photograph, was

made available to the general public for information purposes only.”).

64 Doc. 14 at 2-4. Mr. Stanley asserts, once again in a conclusory manner, that he “ha[s] personal

knowledge of the facts set forth herein,” but does not set forth those facts in the affidavit.

65 Doc. 19-4 at 3 (listing the author as Donna Stanley).

66 Additionally, Defendant provides no similar cases where such a blog tied to a commercial, for-

profit business was found to be noncommercial in nature. Exemplar cases the Court has located

suggest an opposite finding. See FameFlynet, Inc. v. Jasmine Enters., Inc., 344 F. Supp. 3d

906, 911-912 (N.D. Ill. 2018) (“[E]ven if it is true that [defendant] makes no money directly

from the blog, ‘[f]inancial benefit exists where the availability of infringing material acts as a

draw for customers.’”) (quoting A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004, 1023 (9th

Cir. 2001)); Stross v. Stone Textile, 1:18-CV-454, 2019 WL 4060888, at *4 (W.D. Tex. June

27, 2019) (“Here, the blog is conducted under the auspices of [defendant’s] business,

promoting [defendant’s] brand, rather than under a separate non-profit entity with purely

journalistic or educational purposes. Indeed, the blog itself links to [defendant’s] commercial

website.”).

67 Am. Soc. II, 172 F. 4th at 262.

the article’s content and description, while arguably providing some educational

benefit, were attached to the business purposes of Defendant’s overall website.68 As

Defendant brings the affirmative defense of fair use, it is Defendant’s burden to show

that the use was noncommercial. Defendant has not provided evidence of this. More

specifically, Defendant has failed to show that the blog provided no indirect financial

benefit to the business.69 For instance, Defendant has not provided web analytics of

traffic from the blog showing that visitors did not view the rest of the website, or

revenue statements showing that the website provided no financial benefit to the

business.

Accordingly, Defendant has provided insufficient evidence for a jury to find,

by a preponderance of the evidence, that the photograph’s use was noncommercial

in nature. Accordingly, this sub-factor weighs against a finding of fair use.

b. Transformative Use

The second consideration for the purpose and character of the use factor is

whether the infringing use transforms the original work. In analyzing whether the

infringement is transformative, courts ask if the use adds “‘something new, with a

68 See FameFlynet, 344 F. Supp. 3d at 911-12 (“The only reasonable inference from the facts in

the record is that [defendant’s] blog is designed to act as a draw for customers, regardless of

whether [defendant] makes money from the blog itself. [Defendant] cites no testimony from

its representatives or other evidence to the contrary.”).

69 Tellingly, even Mr. Stanley’s affidavit provides no such assertion. In his affidavit, he asserts

that “[t]he Sterling Group did not receive any direct financial benefit from the display of the

photograph in the educational section.” Doc. 14 at ¶ 4 (emphasis added). He makes no such

assertion for indirect benefit.

further purpose or different character’” to the work, or if the copier merely

republishes the original without alteration.70 “A use with a further purpose or

different character is described as ‘transformative.’”71 “Transformativeness is a

‘matter of degree[,]’ . . . [and] [t]he ‘degree of difference must be weighed against

other considerations’ under the first factor, like the extent to which the use is

commercial or nonprofit.”72

“[A] secondary work ‘can be transformative in function or purpose without

altering or actually adding to the original work.’”73 If the copier uses the work in a

new and distinct way, an unaltered work can still be transformative. “For example,

news reporters must ‘faithfully reproduce an original work without alteration,’ but

‘a reporter’s message (‘this is what they said’) is very different from the original

message (‘this is what you should believe’),’ so the use is still transformative.’”74

Ultimately, “[w]hether and to what extent a use is transformative ‘relates to

the justification for the use.’”75 “[A] use that has a distinct purpose is justified

because it furthers the goal of copyright, namely, to promote the progress of science

and the arts, without diminishing the incentive to create.”76 “The more the copier

70 See Am. Soc. II, 172 F.4th at 262-63 (quoting Goldsmith, 598 U.S. at 528).

71 Id. (quoting Goldsmith, 598 U.S. at 529).

72 Am. Soc. II, 172 F.4th at 262 (quoting Goldsmith, 598 U.S. at 525).

73 Am. Soc. II, 172 F. 4th at 263 (quoting Am. Soc. for Testing and Materials v.

Public.Resource.Org, Inc., 82 F. 4th 1262, 1268 (D.C. Cir. 2023)).

74 Am. Soc. I, 752 F. Supp. 3d at 498.

75 Id.

76 Goldsmith, 598 U.S. at 531.

uses copied material for transformative purposes, ‘the more it serves copyright’s

goal of enriching public knowledge’ and the less likely it is that copying will merely

‘serve as a substitute for the original.’”77 Courts should consider whether

reproduction is “reasonably necessary to achieve the user’s new purpose.”78

Here, the work was not transformative. Defendant concedes that the

photograph was used in its entirety without alteration, but argues that the

photograph’s connection with an educational article renders the infringing use

disparate from the photograph’s original purpose.79 Plaintiff has submitted

undisputed testimony indicating that the original work was created as an

advertisement for dog food.80 The original dog food specifically had options for

obese dogs, or dogs needing to lose weight.81 Defendant’s use of this photograph, as

an eye-catching graphic atop an article about dog food options on a blog connected

to their website which also sells dog food, is not transformative from the original use

and purpose of the graphic. Defendant did not alter the work, instead reusing the

photograph in its entirety. When a work is reproduced exactly for the same purpose

as the original, the use is not transformative.82

77 Am. Soc. I, 752 F. Supp. 3d at 498.

78 Goldsmith, 598 U.S. at 532.

79 Doc. 23 at 4.

80 Doc. 21 at ¶ 11.

81 Doc. 21 at ¶ 12.

82 See Balsley v. LFP, Inc., 691 F.3d 747, 759 (6th Cir. 2012).

Moreover, even if Defendant’s assertions are taken as true that the purpose of

using the photograph was “to inform readers about an obese dog,”83 Defendant still

fails to show that this use was objectively transformative. Per Plaintiff’s testimony,

the photograph was designed to inform and draw readers’ attention to canine

obesity.84 Defendant used the photograph to inform and draw readers’ attention to

canine obesity.85 “[I]t appears that [Defendant] did not want to go to the trouble of

creating their own eye-catching photo” for the article’s header and instead

“appropriated the [photograph] for the same purpose” as the original.”86

Additionally, the photograph was unrelated to and unnecessary for

accomplishing Defendant’s “educational” goals for the article. The photograph was

placed atop the article as an eye-catching thumbnail; the article did not reference or

discuss that photograph at all, nor did the photograph give scientific examples of

canine obesity such that its use served a different purpose than the original.87 That

specific photograph could have been replaced with any other photograph and the

article’s “educational value” would remain unchanged. As such, the photograph was

83 Doc. 14 at ¶ 4. This assertion is nonsensical when examining the context in which the

photograph was used. The article does not reference the photograph or draw attention to any

one obese dog in particular, nor does the photograph depict an example of an obese dog.

84 Doc. 21 at ¶¶ 11-12.

85 Moreover, the article itself appeared to be an advertisement for natural dog food, which is sold

on Defendant’s own website.

86 Murphy v. Millennium Radio Group LLC, 650 F.3d 295, 307 (3d Cir. 2011).

87 Doc. 19-4 at 3.

not “reasonably necessary,” or necessary in any capacity, to accomplish Defendant’s

purported educational goals.88

In sum, Defendant has not met their burden to show that the infringing use of

the photograph was transformative. Instead, Defendant used the unaltered

photograph in its entirety for a similar use to the original without adding any further

commentary or substance to the photograph. As such, the transformative sub-factor

also weighs against a finding of fair use. Therefore, as Defendants have failed to

show that the use was noncommercial or transformative, factor one overall weighs

strongly against a finding of fair use.

2. Nature of the Copyrighted Work

The second factor to consider is the nature of the copyrighted work, as “‘[t]he

law generally recognizes a greater need to disseminate factual works than works of

fiction or fantasy.’”89 Fiction and creativity rest at the heart of copyright’s intended

protection, while factual works linger on the outskirts.90 “Thus, fair use is easier to

establish for primarily factual works.”91

Defendant does not dispute that this factor weighs against a finding of fair use,

agreeing that “[p]hotographs are often viewed as creative, aesthetic expressions and

88 See Goldsmith, 598 U.S. at 532.

89 Balsley v. LFP, Inc., 691 F.3d 747, 759 (6th Cir. 2012) (quoting Harper & Row, 471 U.S. at

563).

90 Am Soc. II, 172 F.4th at 266-67.

91 Id. at 267.

have historically received strong copyright protection.”92 Instead, Defendant argues

only that the educational purposes outweigh this factor.93 Defendant has accordingly

conceded that this factor weighs against fair use.

Regardless, the Court’s own analysis confirms that the nature of this work

weighs against a finding of fair use. The photograph at issue is a creative work, not

an informational photograph. The photograph is not a factual or scientific depiction

of an obese dog, rather, the photograph is a humorous depiction of two animals

looking at a scale. Accordingly, the nature of the work also weighs against a finding

of fair use.

3. Amount and Substantiality of the Portion Used

The third factor is the “‘amount and substantiality of the portion used in

relation to the copyrighted work as a whole.’”94 For this inquiry, courts address

whether “the extent of copying is ‘reasonable in relation to the purpose of the

copying.’”95 Although wholesale copying does not per se preclude fair use, “‘the

more of a copyrighted work that is taken, the less likely the use is to be fair.’”96

Defendant acknowledges that Defendant used the entire photograph, but

argues that use of the entire photograph was justified as “integral to its educational

92 Doc. 23 at 4.

93 Id.

94 Am Soc. II, 172 F.4th at 267 (quoting 17 U.S.C § 107(3)).

95 Id. (quoting Campbell, 510 U.S. at 586).

96 FameFlynet, 344 F. Supp. 3d at 913 (quoting Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104,

109 (2d Cir. 19998)).

function within the article.”97 This argument is indefensible. As discussed

previously, the photograph was clearly not integral to the “educational function” of

the article, as the photograph did not interact with the article at all nor did the

photograph itself bring any independent educational benefit. Moreover, even if using

the part of the photograph depicting the dog on a scale98 could be considered integral

to Defendant’s use of it, Defendant advances no argument for why including the

entire photograph was necessary.99 Specifically, Defendant included not only the

dog on a scale but also the cat looking at the dog’s situation. The article makes no

mention of feline obesity. The entire photograph certainly is not integral to educating

the public about the dangers of canine obesity.100

This is not a situation where the entire photograph was used “contextually,”

as “explanatory” or “background” material to “aid in understanding and

97 Doc. 23 at 5.

98 The scale depicted is not a canine scale, nor does the photograph show how to accurately

measure a dog’s weight. The photograph depicts a dog standing with its front legs on a human

scale, which would not accurately capture the dog’s lower body weight. Accordingly, the

argument that this depiction is “integral” to educate the public on canine obesity is not well

taken, as this would not even be the correct way to weigh a dog.

99 Defendant relies on Nunez v. Caribbean Intern. News Corp. to argue that using the entire work

was necessary to achieve the educational purpose. Doc. 23 at 5; 235 F.3d 18, 24 (1st Cir. 2000).

Nunez does not provide the support that Defendant so claims, as in Nunez the infringer could

not have copied any less of the picture without rendering the picture “useless to the story.” Id.

Not only could Defendant here have forgone the photograph completely without affecting the

article’s educational value whatsoever, Defendant certainly could have copied far less of the

photograph by only including the part with the dog.

100 Cf Nunez, 235 F.3d at 24 (where debatably pornographic photographs were a source of

controversy, publishing the substance of those photographs in an article about the controversy

was necessary).

interpreting” a permissible purpose.101 Instead, Defendant copied and pasted

Plaintiff’s work in its entirety without justification. Defendant has not presented

evidence from which a reasonable jury could conclude that this factor would weigh

in its favor. Accordingly, as Defendant used the entire photograph without a valid or

transformative purpose,102 this factor weighs strongly against a finding of fair use.

4. The Effect on the Market for the Copyrighted Work

“The fourth statutory factor examines ‘the effect of the use upon the potential

market for or value of the copyrighted work.’”103 “This factor ‘must take [into]

account not only . . . harm to the original but also . . . harm to the market for

derivative works.’”104 “Courts must consider ‘the extent of market harm caused by

the particular actions of the alleged infringer,’ as well as the potential market

ramifications of ‘unrestricted and widespread conduct of the sort engaged in by the

defendant.’”105

“The Supreme Court has cautioned that ‘[s]ince fair use is an affirmative

defense, its proponent [will] have difficulty carrying the burden of demonstrating

fair use without favorable evidence about relevant markets.’”106 Additionally, when

101 See Am. Soc. II, 172 F.4th at 268.

102 Id. at 267 (noting that “the third factor relates back to the first factor—it will ‘generally weigh

in favor of fair use where ... the amount of copying was tethered to a valid, and transformative,

purpose.’”) (quoting Google, 593 U.S. at 34).

103 Am Soc. II, 172 F.4th at 268 (quoting 17 U.S.C. § 107(4)).

104 Id. (quoting Video Pipeline, 342 F.3d at 202).

105 Id. (quoting Campbell, 510 U.S. at 590).

106 Id. (quoting Campbell, 510 U.S. at 590).

a commercial use is non-transformative and duplicates the original in its entirety,

courts often presume that there was market harm.107

Here, as Defendant has failed to show that this use was non-commercial as

discussed above, and as this work was a non-transformative duplication of the

original, market harm is presumed. Regardless, though, weighing the harm from

Defendant’s particular actions against the potential harm from widespread

infringement, Plaintiff has established market harm. More importantly, Defendant

has not presented any evidence to the contrary, as is its burden.

From the evidence in the record, the extent of market harm from Defendant’s

particular use of the photograph is minimal. Defendant’s particular actions did not

cause Plaintiff’s market great harm, as Defendant did not offer the photograph for

resale and the blog post was seemingly insulated from other platforms and located

only on the breeder’s website. Additionally, Defendant’s audience was relatively

small. At the time Defendant responded to Plaintiff’s interrogatories, and at the time

the photograph was removed from the website, the article had forty-three (43)

views.108

However, Plaintiff has established that there is large potential for market harm

should infringement like Defendant’s become widespread. Plaintiff licenses his

107 See Campbell, 510 U.S. at 591; Murphy, 650 F.3d at 308; Philpot v. Independent Journal

Review, 92 F.4th 252, 261 (4th Cir. 2024).

108 Doc. 18-4 at ¶¶ 16-17, Doc. 24-1 at 2. Since then, the article has reached over 11,000 views,

but it is unclear how many views came about as a result of the litigation. Doc. 21-4.

photographs to advertising campaigns and pet-related ventures.109 Plaintiff has

provided testimony that he relies on the ability to license and sell his photographs

for his livelihood, and that he would be detrimentally affected by widespread

infringement.110 Plaintiff could not locate the specific invoices for the photograph at

issue, but testifies that creating similar photographs costs upwards of $100,000.111 It

is evident that, should a large part of Plaintiff’s consumer base begin copying his

work without paying for it, Plaintiff’s incentive to continue creating such works

would diminish greatly.112

As Defendant raises fair use as an affirmative defense, it is Defendant’s

burden to provide evidence contradicting this testimony, as the Supreme Court has

outlined.113 Yet Defendant has failed to provide any affirmative evidence that the

infringing use would not affect Plaintiff’s market. Instead, Defendant advances

several arguments: first, that Defendant received no direct commercial benefit from

using the photograph; second, that there is “no evidence of market harm” to Plaintiff;

third, that there is “no commercial use” for a “picture of a dog on a scale;” and

109 Doc. 21 at ¶ 14.

110 Doc. 21 at ¶ 7.

111 Doc. 21 at ¶ 14. The specific amount of damages Plaintiff would receive should be addressed

at a later stage of litigation, as neither party has presented evidence or testimony on damages

at this stage.

112 Plaintiff has not, though, provided evidence that he was actively licensing the work or

exploiting the market for his photographs. See, e.g., Warren Pub. Co., 645 F. Supp. 2d at 427-

28 (noting that the failure to exploit copyrights substantially detracts from argument on fourth

factor). Therefore, this factor does not weigh strongly in Plaintiff’s favor.

113 Am Soc. II, 172 F.4th at 268 (quoting Campbell, 510 U.S. at 590).

finally, that a similar photograph “could have been produced using artificial

intelligence.”114 None of these arguments are meritorious. The Court addresses each

in turn.

First, Defendant’s claim that it received no direct commercial benefit from the

photograph is unavailing. Defendant’s commercial benefit was addressed squarely

in factor one, and, as the Court has already noted, Defendant has not proven that the

infringing use provided no indirect benefit. Regardless, this fourth factor focuses not

on direct financial benefit to Defendant, but rather the harm to Plaintiff’s work and

market.115 Courts may also consider the benefit to the public from Defendant’s

infringing use, weighing it against Plaintiff’s harm.116 The Court will repeat for

thoroughness, at the risk of redundancy, that the use of this specific photo brought

no educational benefit to the public. Defendant’s argument that the photograph’s

“educational value” must outweigh any harm to Plaintiff’s potential markets

therefore fails, as insufficient public benefit has been shown.

Second, Defendant incorrectly asserts that the burden rests with Plaintiff to

demonstrate market harm.117 As Defendant raises the affirmative defense of fair use,

it is Defendant’s burden to show favorable evidence about relevant markets.118

114 Doc. 23 at 5-6.

115 Am Soc. II, 172 F.4th at 268.

116 Id.

117 Doc. 23 at 6.

118 Campbell, 510 U.S. at 590.

Defendant has failed to produce any such evidence. “Defendant[] fault[s] [Plaintiff]

for not providing more evidence about the market for his work, but this misplaces

the evidentiary burden.”119

Third, Defendant argues that “[t]here was no commercial use for the

photograph” because it was “a picture of a dog on a scale” which “simply illustrated

a dog stepping on a scale.”120 With this argument, Defendant implies that

photographs depicting real life objects, or silly scenarios, cannot be copyrighted.

This argument is manifestly contrary to all relevant authority.121 Plaintiff has

established that he sells these photographs, and that producing them requires

significant resources.122 Defendant may believe Plaintiff’s work is unserious. That

belief, however, provides no support for Defendant’s contention that there is “no

commercial use for the photograph.”123 Indeed, Defendant clearly believed the

photograph was useful when using it as the cover photo for an article.

Finally, Defendant’s argument that artificial intelligence (“AI”) could have

been used to generate the image is not well taken.124 To be clear, there is no

119 Murphy, 650 F.3d at 309 n.17.

120 Doc. 23 at 6.

121 See, e.g., Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 410 (2017); Silvertop

Assoc’s. Inc. v. Kangaroo Manuf. Inc., 931 F.3d 215, 221-222 (3d Cir. 2019) (“[Defendants]

ask us to hold that depictions of natural objects in their natural condition can never be

copyrighted. This argument seeks to raise the originality requirement’s very low bar, which

precedent forecloses for good reason.”).

122 Doc. ¶¶ 11, 14.

123 Doc. 23 at 6.

124 Doc. 23 at 6.

contention that Defendant actually used AI to generate the image. Instead, Defendant

asks the Court to rule, without any legal support, that copyright does not protect

works which could have been generated with AI.125 Such a holding would destroy

the foundations of copyright law. The Court declines to endorse or entertain this

proposition.

Defendant has failed to present evidence demonstrating a lack of harm to the

potential market for Plaintiff’s work. Harm is presumed from Defendant’s specific

use of the photograph, and, regardless, there is a high potential that widespread

infringement like Defendant’s would hurt the market for Plaintiff’s work.

Accordingly, Defendant cannot meet its burden for this factor, and it, therefore, does

not weigh in favor of fair use.

5. Overall Assessment

“All factors ‘are to be explored, and the results weighed together, in light of

the purposes of copyright.’”126 Analyzing the four fair use factors, Defendant has not

125 But why stop there? Defendant could have also taken its own photograph of a dog on a scale

with the very dogs it breeds. Perhaps Defendant could also sculpt Michaelangelo’s David, or

re-paint the Mona Lisa, depending on Defendant’s talent. Under Defendant’s logic, the only

works entitled to protection would be those which no machine or human could recreate. This

argument cannot stand.

The case that Defendant cites for this absurd proposition, Thaler v. Perlmutter, provides no

such support. Doc. 23 at 6; 130 F.4th 1039, 1048-50 (D.C. Cir. 2025). Indeed, Thaler holds

that “the human authorship requirement does not prohibit copyrighting work that was made by

or with the assistance of artificial intelligence.” Id. Defendant provides no other authority for

its proposition. None exists.

126 Am Soc. II, 172 F. 4th at 261 (quoting Murphy, 650 F. 3d at 306).

met its burden to prove that any of the factors weigh in favor of fair use. Specifically,

the nature of the work is artistic, Defendant used the entire photograph in a non-

transformative way, and Defendant has not presented evidence demonstrating that

the use was noncommercial nor that there would be a minimal effect on the market.

Defendant has presented insufficient evidence to raise any genuine disputes of

material fact.127 Accordingly, Plaintiff’s motion for summary judgment on

Defendant’s affirmative defense of fair use is granted. Defendant’s motion for

summary judgment is denied.

E. Damages

Plaintiff has moved only for summary judgment on the issue of liability, not

damages.128 At this time, neither party has addressed the issue of damages, and the

Court will therefore grant Plaintiff’s motion for summary judgment only on the issue

of liability. Parties shall submit a status report within fourteen (14) days from the

date of the accompanying Order addressing how they would care to proceed on the

issue of damages.

127 Plaintiff has described the situation well: “[m]erely labeling a use ‘nonprofit,’ ‘educational,’

and ‘noncommercial’ does not establish fair use, particularly where the website is part of a

commercial enterprise and the photograph is used exactly for its original illustrative purpose

without transformation.” Doc. 27 at 12.

128 Doc. 15 (Mot.) (moving for summary judgment “on the issue of liability”).

III. CONCLUSION

Defendant has failed to produce evidence sufficient for a rational person to

conclude, by a preponderance of the evidence, that the fair use doctrine permits the

infringement. Defendant’s affirmative defense fails as a matter of law. Plaintiff’s

motion for summary judgment is granted as to copyright infringement and as to

Defendant’s affirmative defense. Defendant’s motion for summary judgment is

denied. Judgment is entered in favor of Plaintiff and against Defendant. The parties

are instructed to submit a status report within fourteen (14) days from the date of the

accompanying Order addressing how the question of damages shall proceed.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge