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Different Look, Different Feel: Rehashing Fair Use in the Second Circuit
In a recent decision, the U.S. Court of Appeals for the Second Circuit in Romanova v. Amilus Inc., No. 23-828, 2025 WL 1479007 (2d Cir. May 23, 2025), addressed application and analysis of the fair use doctrine under copyright law, and reversed the district court’s finding of fair use. In an unusual situation, the lower court had dismissed the complaint sua sponte, although the defendant’s time to respond to the complaint had expired.
At issue was whether a website’s unauthorized display of a photographer’s copyrighted photograph, originally published under license in National Geographic Magazine, constituted fair use. The crux of the case is whether the U.S. District Court for the Southern District of New York’s sua sponte dismissal of the complaint with prejudice was proper and whether fair use was clearly established on the face of the complaint. Particularly, the Second Circuit reviewed the district court’s finding that Defendant Amilus Inc.’s publication of Plaintiff Jana Romanova’s photograph communicated a different message than was originally intended by Plaintiff.
The Copyright Act aims to encourage creativity by granting the author of an original work a bundle of exclusive rights, including the rights to reproduce the copyrighted work, prepare derivative works, and display copyrighted pictorial or graphic works publicly. 17 U.S.C. §106. Copyright law also permits courts to avoid rigid application of the copyright statute when it would stifle creativity which the law is designed to foster — as made evident given statutory recognition of the common law fair use doctrine. 17 U.S.C. §107.
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