Galvin et al v. Illinois Republican Party et al
Filing
47
MEMORANDUM Opinion and Order: Defendants' Motion to Dismiss 17 is granted. Counts I through VII are dismissed. See Order for further details. Signed by the Honorable James B. Zagel on 9/9/2015. Mailed notice(ep, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
QUENTON GALVIN AND JACOB MEISTER,
Plaintiffs,
v.
No. 14 C 10490
Judge James B. Zagel
ILLINOIS REPUBLICAN PARTY, ILLINOIS
HOUSE REPUBLICAN ORGANIZATION,
RODERICK DROBINSKI, FRIENDS OF ROD
DROBINSKI, JAMESTOWN ASSOCIATES, LLC,
AND MAJORITY STRATEGIES, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs Quenton Galvin and Jacob Meister (“Plaintiffs”) filed a twenty-six count complaint
against Defendants Illinois Republican Party, Illinois House Republican Organization, Roderick
Drobinski, Friends of Rod Drobinski, Jamestown Associates, LLC, and Majority Strategies, Inc.
alleging copyright infringement, civil conspiracy, appropriation of image, false light, and defamation.
Defendant Jamestown Associates was dismissed by stipulation. The remaining Defendants
(“Defendants”) now move to dismiss Counts I-VII of Plaintiff’s complaint for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, Defendants’ motion to dismiss is
granted.
I.
FACTUAL BACKGROUND
In early October 2014, Defendants Illinois Republican Party, Illinois House Republican
Organization, Roderick Drobinski, Friends of Rod Drobinski, and Majority Strategies, Inc.
intentionally authorized, printed, and mailed several thousand 8.5 by 17-inch flyers with two copies
of an altered picture of Plaintiff Jacob Meister. The original picture (the “Photograph”) depicts
Plaintiff Meister driving a convertible in a political parade with a poster on the side of the car
advertising Sam Yingling, a Democratic member of the Illinois House of Representatives who was
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running for re-election. The Photograph was taken and copyrighted by Plaintiff Quenton Galvin, a
professional photographer who authorized Sam Yingling to post the Photograph on his campaign
website.
Without the permission of the photographer, Galvin, or the subject, Meister, Defendants
electronically copied the Photograph from Mr. Yingling’s website and altered it to appear as though
Mr. Meister was driving away from the Illinois State Capitol with stolen money in the backseat and
hundred dollar bills flying out of the open convertible. Defendants believed that the man driving the
car was Representative Yingling rather than Plaintiff Meister, a private individual, and intended to
criticize Mr. Yingling’s fiscal policies.
Plaintiffs incorporated two slightly different versions of the altered Photograph in a flyer
(the “Flyer”) promoting Roderick Drobinski, a candidate running for State Representative opposite
Sam Yingling. Superimposed above or beside the altered photographs are the words: “Mr. Yingling
Went to Springfield . . . And Fiscal Responsibility Went Out the Window” and “Career Politician
Sam Yingling in the Driver’s Seat as Illinois Speeds Towards Higher Taxes, More Wasteful
Spending, and More Jobs Lost.” Defendants mailed the Flyer to several thousand potential voters
leading up to the Illinois State Representative election.
II.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) does not test the merits of a claim; rather, it tests
the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In
deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true, and draws all reasonable
inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “While legal conclusions can provide the framework of a
2
complaint, they must be supported by factual allegations.” Id. at 679.
A plaintiff may state a claim even though there is a defense to that claim, and courts should
usually refrain from granting Rule 12(b)(6) motions on affirmative defenses. Brownmark Films, LLC
v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (citing United States v. Lewis, 411 F.3d 838,
842 (7th Cir.2005). Still, when all relevant facts are presented, the court may properly dismiss a case
before discovery on the basis of an affirmative defense. See id.
III.
A.
DISCUSSION
Copyright Infringement and Civil Conspiracy (Counts I-VII)
Plaintiffs claim that Defendants infringed Plaintiff Galvin’s copyright in violation of the U.S.
Copyright Act, 17 U.S.C. § 501 by intentionally authorizing, printing, and mailing several thousand
Flyers using two copies of the Photograph without Plaintiff Galvin’s permission. Defendants do not
dispute that Plaintiffs have adequately pled a claim of copyright infringement, as the complaint
establishes the two necessary elements: (1) ownership of a valid copyright and (2) copying of
constituent elements of the work that are original. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,
499 U.S. 340, 361 (1991). Rather, Defendants assert an affirmative defense on the ground that the
Photograph was used in the Flyer for the purpose of criticism and commentary and thus constitutes a
fair use under 17 U.S.C. § 107. As with any affirmative defense, the Defendants carry the burden of
proving that their unauthorized use of the Photograph constitutes a fair use. Chicago Bd. of Educ. v.
Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003).
Under the Copyright Act, the exclusive rights afforded to copyright owners do not extend to
“fair uses” of copyrighted works. § 107. Therefore, anyone who makes a fair use of a copyrighted
work is not an infringer of the copyright with respect to such use. Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. 417, 432 (1984). There is no statutory definition or formula for
establishing a fair use, but Congress listed “criticism, comment, [and] news reporting . . .” in the
preamble of § 107 as paradigmatic examples of fair uses. Harper & Row Publ’rs, Inc. v. Nation
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Enterprises, 471 U.S. 539, 592 (1985). In addition to these illustrations, Congress codified the
following four factors, which courts must consider when analyzing an unauthorized use under § 107:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit 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.
U.S. Copyright Act, 17 U.S.C. § 107.
These factors are not exhaustive and represent common law jurisprudence, which Congress
expected to evolve over time. See Harper & Row, 471 U.S. at 595 n.19. Since fair use defies precise
definition, courts must analyze fair use defenses on a case-by-case basis, keeping in mind the goal of
copyright protection at large—that is, “[t]o promote the Progress of Science and useful Arts . . ..”.
U.S. Const., Art. I, § 8, cl. 8.
As a preliminary matter, Defendants’ motion to dismiss based on an affirmative defense is
procedurally appropriate at this juncture. 1 It is well established that courts should refrain from
granting Rule 12(b)(6) motions on affirmative defenses that turn on facts not before the court,
Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012), and that the fair use
defense usually implicates questions of law and fact. Harper & Row, 471 U.S. at 549. However, a
court “may conclude as a matter of law that the challenged use [does] or does not qualify as a fair use
of the copyrighted work” when the facts on record are “sufficient to evaluate each of the [fair use]
statutory factors.” Id. at 560 (internal quotations and citations omitted). Such is the case here.
Plaintiff’s claim is limited to the production and distribution of a single, allegedly infringing
1
As the Seventh Circuit has repeatedly cautioned, the proper heading for motions on the basis of affirmative defenses is
Rule 12(c) because an affirmative defense is external to the complaint. See Brownmark Films, 682 F.3d at 690 n.1. I am
nonetheless ruling on the instant affirmative defense under the Rule 12(b)(6) heading, but future litigants should take heed
of the Seventh Circuit’s exhortation.
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work, and both the original work and its unauthorized reproduction are attached to the complaint,
allowing side-by-side review. See Brownmark Films, 682 F.3d at 690 (stating that despite
defendants’ arguments to the contrary, “the only two pieces of evidence needed to decide the
question of fair use in this case are the original version of [the copyrighted episode] and the
[allegedly infringing] episode at issue.”). Given the limited nature of the present claim and the
sufficiency of the allegations in and attachments to the complaint, the Court can evaluate each of the
fair use factors at this juncture. 2
1.
The Purpose and Character of Defendants’ Use.
The first factor to be considered in the fair use determination is “the purpose and character of
the use, including whether such use is of a commercial nature or is for nonprofit educational
purposes.” § 107(1). The Supreme Court explained that the goal of this investigation is to see
“whether the new work merely supersedes the objects of the original creation . . . or instead adds
something new, with a further purpose or different character, altering the first with new expression,
meaning, or message; it asks, in other words, whether and to what extent the new work is
transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (internal quotations
and citations omitted).
Defendants argue that the purpose and character of the Flyer is wholly unrelated and
altogether different from the purpose of the Photograph, making their work “highly transformative.”
A cursory look at the two works confirms that the Photograph was created to document the campaign
parade of Representative Yingling, while the Flyer was created to lambast his politics. Their
difference in purpose is obvious. In the words of the Supreme Court in Campbell, the Flyer
“transformed” the Photograph by giving it “new meaning [and] message” through political criticism.
Id. See also Dhillon v. Does 1-10, No. C 13-01465 SI, 2014 WL 722592, at *5 (N.D. Cal. Feb. 25,
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Plaintiffs argue that discovery is needed to resolve disputes regarding material facts, such as the commercial value of the
Flyer, before the Court can properly rule as a matter of law on the sufficiency of Defendants’ affirmative defense. Even
taking any such disputed facts in Plaintiffs’ favor, the Court would not alter the outcome of the instant fair use analysis.
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2014) (finding defendant’s use of politician’s headshot “transformative,” because plaintiff used the
photo as a tool to positively market herself as a candidate for state office while defendant used it to
criticize her political views).
The critical and political nature of the Flyer, however, does not automatically tilt the scale in
favor of the Defendants with respect to the first factor. The list of fair use examples in the preamble
of § 107, including “criticism [and] commentary,” was not meant to single out any particular use as
presumptively fair. Harper & Row, 471 U.S. at 561. Furthermore, the politically significant nature of
the subject matter of a work does not afford it any more or less copyright protection than less topical
works. Id. at 545. Critiquing the policies of a candidate for elected office is undoubtedly essential to
democratic discourse; however, the right to engage in political speech is primarily protected by the
First Amendment rather than the Copyright Act. Id. at 556.
While the First Amendment preserves the non-exclusive right to express political speech, the
Copyright Act preserves the exclusive right to use one’s fixed expressions of political speech. Id.
(stating that “[c]opyright laws are not restrictions on freedom of speech as copyright protects only
form of expression and not the ideas expressed.”) (internal citations and quotations omitted).
Therefore, Plaintiff Galvin’s exclusive right to use his Photograph (under the Copyright Act) can
coexist with Defendants’ right to criticize Mr. Yingling’s policies (under the First Amendment).
Contrary to the Defendants’ intimation, the nature of the Flyer as political criticism does not in and
of itself override the copyright protection accorded to the Photograph. See id. at 557 (holding that
“[t]he fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright
whenever it determines the underlying work contains material of possible public important.”)
(internal citations and quotations omitted).
In Campbell, the Supreme Court addressed the role of fair use with respect to criticism and
commentary. 510 U.S. 569 (1994). There, the Court distinguished between parodies (which directly
comment, at least in part, on the original work) and satires (which comment more broadly on societal
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mores and institutions). Id. at 579-84. The Court held that the “parodist is justified in using the
original work because a parody's effectiveness necessarily springs from recognizable allusion to its
object,” whereas the satirist who ridicules subjects unrelated to the work lacks the same claim to use
of the work. Id. at 588, 580. Accordingly, parodies have “an obvious claim to transformative value,”
while satires face a “greater burden of proving the necessity of the[ir] use.” Id. at 579, 580 n.14.
In this case, the Flyer critiques the politician (believed to be) pictured in it, rather than
critiquing the Photograph itself. Defendants argue that the Flyer does comment on the underlying
work insofar as it parodies the “nonchalant and reckless attitude of the man brought out by the
photograph.” Based on the allegations in the complaint and a perfunctory review of the Flyer, it is
clear that the Defendants aimed to criticize Mr. Yingling’s fiscal policy through an amusing
juxtaposition of wordplay and imagery. This effect, however, could have been realized just as well
through the use of a photograph depicting an intense, focused driver as opposed to a “nonchalant and
reckless” one. Therefore, “[t]here’s no good reason why defendants should be allowed to appropriate
someone else’s copyrighted efforts as the starting point in their lampoon, when so many
noncopyrighted alternatives (including snapshots they could have taken themselves) were available.”
Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014).
In addition to the transformative value and critical nature of an unauthorized use, the
copier’s motivation as “commercial” versus “non-profit educational” also informs courts’ first factor
analyses. See Campbell, 510 U.S. at 579 (referencing § 107(1)). The crux of this commercial/nonprofit distinction is “whether the user stands to profit from exploitation of the copyrighted material
without paying the customary price.” Harper & Row, 471 U.S. at 562. As the complaint makes clear,
Defendants did not directly profit from the Flyer, copies of which were distributed to voters free of
charge.
Even though the Defendants saved money by not licensing the Photograph or commissioning
an original one of their own, it is clear that the Defendants’ objectives were more “non-profit” than
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“commercial.” See Henley v. DeVore, 733 F. Supp. 2d 1144, 1159 (C.D. Cal. 2010) (surveying fair
use case law and finding that “[d]istrict courts that have actually considered whether campaign
advertisements are commercial in the fair use context come down on the side of noncommercial.”);
Kienitz, 766 F.3d at 759 (finding that defendants’ small profit margin—from an unauthorized use of a
politician’s portrait on a t-shirt—was neutralized by the fact that they “chose the design as a form of
political commentary.”). 3
The net result of this Court’s first factor analysis is unavailing. On the one hand, the
transformative purpose and non-commercial nature of the Flyer weigh in favor of Defendants. On the
other hand, Defendants did not need to use the Photograph in order to effectuate their criticism, and
the fair use privilege “is not designed to protect lazy appropriators.” Id. Given this deadlock under
factor one, I move on to the remainder of the statutory factors, bearing in mind that “the dichotomy at
the heart of the first factor between new works that transform and complement the original versus
new works that serve as a substitute for and supersede the original, is best understood in terms of the
fourth factor.” Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC, No. 13 C 4664, 2014 WL
3368893, at *9 (N.D. Ill. July 8, 2014) (referencing Ty, Inc. v. Publications Int'l Ltd., 292 F.3d 512,
523 (7th Cir. 2002)).
2.
The Nature of the Copyrighted Work.
The second statutory factor requires that courts assess the “value of the materials used.” See
Campbell, 510 U.S. at 576 (internal quotations and citations omitted). In so doing, courts generally
consider whether the original work is more creative or factual in nature and whether it was published
at the time of the allegedly infringing use. See Harper & Row, 471 U.S. at 563-64.
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An additional element that Plaintiffs have encouraged this Court to consider as part of the first factor analysis is the good
versus bad faith exhibited by the Defendants in their use of the Photograph. See, e.g., Harper & Row, 471 U.S. at 562.
Here, Defendants undisputedly intended to criticize the political subject of the Photograph, but criticism is not
synonymous with bad faith lest all parodies, satires, and other forms of critique fall outside the realm of fair use. Although
the Supreme Court described good faith and fair dealing as required elements of fair use in Harper & Row, the Court has
since stated that good faith is not central to fair use. See Campbell, 510 U.S. 578 n. 18. I therefore do not find it necessary
to assess Defendants’ good versus bad faith, which is a factual determination that would be of little consequence in this
Court’s aggregate analysis of Defendants’ fair use defense.
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In this case, the Photograph was already published and publicly available online when
Defendants copied it for use in the Flyer. Moreover, the Photograph bears a factual nature. Although
“the fair-use doctrine is not intended to set up the courts as judges of the quality of expressive
works,” Ty, Inc., 292 F.3d at 523, courts are responsible for evaluating the facial plausibility of the
pleadings. See Ashcroft, 556 U.S. at 678.
This Court need only inspect the Photograph to characterize it as a “candid image taken of [a
politician] at a political event” and primarily factual in nature. See Kienitz v. Sconnie Nation LLC,
965 F. Supp. 2d 1042, 1052 (W.D. Wis. 2013). Because Plaintiff Galvin took the Photograph during
a live parade, he obviously did not stage the action depicted in it. Whatever artistry he contributed
(by way of the angle, framing, or other composition of the Photograph) could not plausibly outweigh
its factual nature. I therefore find that the nature of the copyrighted work as a published, factual
photograph weighs in favor of Defendants’ fair use defense.
3.
The Amount and Substantiality of the Portion Used.
The third fair use factor examines whether the amount and substantiality of the portion used
was reasonable in relation to the copyrighted work as a whole. § 107(3). Because “there is no per se
rule against copying in the name of fair use an entire copyrighted work,” Chicago Board of Educ.,
354 F.3d at 629, a reasonable reproduction can include substantial portions of the original. The
determination of what qualifies as reasonable harks back to the first statutory factor insofar as “the
extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S.
at 586-87.
For example, a copy that parodies the underlying work may reasonably use a
significant portion of the original because “[p]arody needs to mimic an original to make its point,”
Henley, 733 F. Supp. 2d at 1152, whereas “satire can stand on its own two feet and so requires
justification for the very act of borrowing.” Campbell, 510 U.S. at 581.
It is again relevant that Defendants did not need to use the copyrighted work in order to
convey their political message. In order to play off of taglines like “Career Politician . . . in the
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Driver’s Seat” and “Fiscal Responsibility Went out the Window,” Defendants needed to show the
politician driving a car, but they did not need to use Plaintiff Galvin’s copyrighted work in particular.
Furthermore, much of the original Photograph was unaltered in the Flyer, including the depiction of
the driver, who figures prominently in both works. Given the plethora of alternative means for
Defendants to criticize Mr. Yingling and the qualitative similarities between the Flyer and
Photograph, I find that the third factor weighs against Defendants’ fair use defense.
4.
Effect Upon Potential Market or Value of the Copyrighted Work.
The fourth factor examines whether and how the unauthorized use will affect the potential
market for or value of the copyrighted work. § 107(4). The Seventh Circuit has indicated that this
factor is usually the most important. See Kienitz, 766 F.3d at 758. When evaluating the market effect
of an alleged infringement, courts consider whether it serves as a substitute in both the market for the
original work and the market for its legally protected derivatives. See Campbell, 510 U.S. at 587.
Furthermore, courts must consider “whether unrestricted and widespread conduct of the sort engaged
in by the defendant . . . would result in a substantially adverse impact on the potential market for the
original,” id. at 590 (internal quotations and citations omitted), for “[i]solated instances of minor
infringements, when multiplied many times, become in the aggregate a major inroad on copyright
that must be prevented.” Harper & Row, 471 U.S. at 566-67 (internal quotations and citations
omitted).
In the case of pure parody, it is unlikely that the copy will act as a substitute for the original,
since the two works serve different market functions. Campbell, 510 U.S. at 591. The same logic
applies to derivative markets of criticism, because “[t]he market for potential derivative uses includes
only those that creators of original works would in general develop or license others to develop. Yet
the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their
own productions removes such uses from the very notion of a potential licensing market.” Id. at 592.
Despite its clear findings regarding the market effects of parodies, the Supreme Court has eschewed
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any finding “as to the derivative markets for works using elements of an original as vehicles for satire
or amusement, making no comment on the original or criticism of it.” Id. at 592 n.22.
Absent guidance regarding “looser” forms of criticism like satires and political
commentaries, this Court has conducted a side-by-side analysis of the Photograph and Flyer and
reasons that the latter is a “complement” to rather than a “substitute” for the former. See Kienitz, 766
F.3d at 758 (finding that a t-shirt depicting an altered portrait of a politician in order to comment on
his politics is complementary). Considering only the loss to potential licensing revenues from
“traditional, reasonable, or likely to be developed markets,” Associated Press v. Meltwater U.S.
Holdings, Inc., 931 F. Supp. 2d 537, 560 (S.D.N.Y. 2013) (internal citations and quotations omitted),
I find that the Flyer has not and will not plausibly cut into demand for the Photograph.
A basic comparison of the two works reveals that they cater to wholly different audiences.
Anyone who wants an accurate depiction of the political parade or Mr. Yingling’s campaign
activities (for example, a media outlet interested in using the Photograph for a news story) would not
plausibly license the Flyer instead. See New Era Publications Int’l, ApS v. Carol Pub. Grp., 904 F.2d
152, 160 (2d. Cir. 1990) (stating that “a critical biography serves a different function than does an
authorized, favorable biography, and thus injury to the potential market for the favorable biography
by the publication of the unfavorable biography does not affect application of factor four.”). In fact,
the Flyer may have increased market demand for the Photograph given the attention it ostensibly
brought to the election and political campaign of Mr. Yingling. In the event that the Flyer impaired
the market for the Photograph, the only plausible way it could have done so is as a “negative
complement,” Ty, Inc., 292 F.3d at 518, much like a book review or parody that criticizes the subject
matter of the copyrighted work.
The Seventh Circuit has acknowledged that such “negative complements” can impair a
plaintiff’s “long-range commercial opportunities” even if a defendant’s unauthorized use does not
reduce the value derived from the plaintiff’s original work. See Kienitz, 766 F.3d at 759. In Kienitz,
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the Seventh Circuit found that the defendants’ unauthorized use of a mayor’s portrait on a political tshirt was a fair use, but the court surmised in dicta that fewer politicians might hire the plaintiff as a
photographer if they think the high quality of his work would make his photographs more effective
when used against them. Id.
In this case, however, Plaintiffs do not argue that fewer people will hire or cooperate with
Mr. Galvin given Defendants’ use of his work. Rather, Plaintiffs’ only argument related to market
effect is that Defendants’ political commentary harms the reputation of Mr. Galvin’s subjects and
thus the value of his photographs. Avoiding this result is simply not a purpose of copyright law. Fair
use analyses do not take account of commercial depreciations that are due solely to critical
commentary of underlying works. See Campbell, 510 U.S. at 570, 592 (stating that “[t]he cognizable
harm is market substitution, not any harm from criticism” and that “the role of the courts is to
distinguish between biting criticism that merely suppresses demand and copyright infringement,
which usurps it.”) (internal quotations and citations omitted).
Potential market harm due to the blemished reputation of the politician depicted in the
Photograph is not protected by Plaintiff Galvin’s copyright. See New Era Publications, 904 F.2d at
160 (stating that “even if [an unfavorable biography] ultimately harms sales of the authorized
biography, this would not result from unfair infringement . . . but rather from a convincing work that
effectively criticizes [the subject of the biography], the very type of work that the Copyright Act was
designed to protect and encourage.”); Dhillon v. Does 1-10, No. C 13-01465 SI, 2014 WL 722592, at
*5 (N.D. Cal. Feb. 25, 2014) (holding that unauthorized use of politician’s headshot to criticize her
politics is “precisely what the Copyright Act envisions as a paradigmatic fair use.”); Katz v.
Chevaldina, No. 12-22211-CIV-KING, 2014 WL 2815496, at *1 (S.D. Fla. June 17, 2014) (finding
unauthorized use of unflattering photo of businessman in a blog that is critical of his business
practices to be fair use as a matter of law).
For these reasons, I find that the fourth factor weighs in favor of Defendants’ fair use
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defense.
IV.
CONCLUSION
Given findings in favor of the Defendants under the second and fourth factors—the latter
of which is afforded the most importance by the Seventh Circuit, see Kienitz, 766 F.3d at 758, I
conclude that the Defendants have raised a satisfactory fair use defense. The findings in favor of the
Plaintiffs under the third factor do not outweigh the preceding findings in favor of the Defendants;
the same would hold true if the first factor analysis were resolved in Plaintiffs’ favor. Therefore,
Plaintiffs’ copyright infringement claims are precluded by Defendants’ affirmative defense under §
107, and Counts I-VI are dismissed. Plaintiffs’ civil conspiracy claims under Count VII (conspiracy
to infringe Plaintiffs’ copyright) are also dismissed, for “[w]here . . . a plaintiff fails to state an
independent cause of action underlying its conspiracy allegations, the claim for a conspiracy also
fails.” Indeck N. Am. Power Fund, L.P. v. Norweb PLC, 316 Ill. App. 3d 416, 432 (2000).
ENTER:
James B. Zagel
United States District Judge
DATE: September 9, 2015
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