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Second Circuit Ruling on Copyright Fair Use Defense and Infringement Lawsuit Default Judgments
In copyright litigation, an infringement defendant may claim fair use as an affirmative defense. But the U.S. Court of Appeals for the Second Circuit recently ruled that a district court, on its own initiative, could raise a fair use defense for a defendant that hadn’t appeared in the case.
In Romanova v. Amilus Inc., 23-828, Russian photographer Jana Romanova alleged copyright infringement over Amilus’s unlicensed posting on its website www.ai-ap.com of a photograph, of a Russian woman posing with two snakes, that Romanova had previously licensed to National Geographic. After Amilus failed to respond, Romanova filed for a default judgment, but the U.S. District Court for the Southern District of New York ordered her to demonstrate why the unlicensed photo posting hadn’t been a fair use. The district court then dismissed her complaint with prejudice by determining that a “transformative” fair use was “clearly established on the face of the complaint.”
The district court found fair use because the point of the Romanova photo in National Geographic had been “to showcase persons in … Russia that kept snakes as pets, specifically to capture pet snakes in common environments that are more associated with mainstream domesticated animals.” Amilus’s message had been to show an “ever-increasing amount of pet photography circulating online.”
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