Sadowski v. BackChina, LLC.
Filing
27
OPINION on Summary Judgment. BackChina's motion for summary judgment will be denied. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
United States District Court
Southern District of Texas
Christopher Sadowski,
Plaintiff,
1!ersus
BackChina, LLC,
Defendants.
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ENTERED
July 16, 2018
David J. Bradley, Clerk
Civil Action H-I7-I562
Opinion on Summary Judgment
1.
Background.
A photographer claims that a website infringed on his copyright when it used
his picture in its article without his consent. The site argues its use was protected
because it was fair use.
In January 2OI6, Christopher Sadowski licensed several of his pictures to the
New York Post. One of these pictures was used in an article it published online. The
article was about a mother and son who died from carbon monoxide poisoning. They
were sitting in the car while the father shoveled snow from around the car. The police
say the two died because the car was running while its exhaust pipe was clogged with
snow. The picture shows the car where the two died, and the article credits Sadowski
for the photograph.
The Post published its article with the picture onJanuary 25, 20I6, at 6:32 am.
A Canadian website - creaders.net - published an article in Chinese about the deaths
with the picture at 2:0I p.m. Then at 5:I4 p.m., a news editor for BackChina republished the creader.net article on its own website - 2Iuscity.com. The creaders.net
article and BackChina's both used Sadowski's picture without his permission.
Sadowski says he lost money from the unauthorized use of his picture. He says
he licensed the picture to the Post and an Australian internet news outlet news.com.au. He has an invoice to the Post for $5,500 and to Australian news outlet
for $1,500; however, he has not disclosed receipts on contemporary deposits. He has
produced receipts for other pictures he licensed.
BackChina says it did not infringe on Sadowski's copyright because it was used
to educate Chinese readers on carbon monoxide. It says most Chinese people have not
driven a car before traveling to the United States. It says because of this, they would not
know carbon monoxide poisoning could occur in these conditions. Sadowski's picture
would not solve this problem. It does not show how to avoid carbon monoxide
poisoning; it shows a car with snow around it. The car shown is not distinguishable
from other snow-bound cars. The text is what educates.
2.
Copyright.
BackChina must show that using the photograph is fair use.' To establish fair
use, four non-exclusive factors are weighed: (a) whether the picture was used
commercially and BackChina transformed it; (b) whether the picture is more creative
or factual; (c) how much of the copyrighted work was used, and (d) how the
unauthorized used affects the market for the work. 2 Copyrighted work used in someone
else's critique is an example of fair use. The factors are weighed together, but the fourth
is the most important.
3.
Purpose and Character of the Use.
This factor disfavors fair use. BackChina concedes its use was commercial.
BackChina says that it transformed the picture because its post targets a Chinese
audience, is published in the Chinese language, and includes textual changes. Sadowski
argues BackChina did not comment on or criticize his photo, and did not transform his
picture because it re-posted it with a copy of creader.net' s article.
Sadowski's copyright is in the picture, not the text. BackChina reprinted the
same picture that appeared in the Post article. Its use supersedes the original picture.
The picture does not report news independent of the text. The picture is also not
educational by itself. A car with snow around it does not educate readers on how to
avoid carbon monoxide poisoning. While the picture compliments the text, so would
any picture of a car with snow around it. Nobility of the user's purpose does not widen
the scope of fair use.
I
17 USc. 107; Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 560 (1985).
2
Harper
(9-
Row, 471 U.S. at 560.
BackChina uses the picture in an article that covers the same event as the Post's.
The picture in BackChina's post might be of a lower resolution, cropped, or on a
smaller size, but this also does not give the picture a new aesthetic. BackChina did not
transform Sadowski's picture by copying it from the Post.
4.
Nature of the Copyrighted Work.
This factor favors fair use. BackChina argues the picture was previously
published and factual. It is factual because it was shot in public. No evidence shows that
Sadoski tried to convey ideas, emotions, or influence the car's appearance. Sadowski
says he spent a large amount of time and effort to take the pictures, which makes it
creative.
This is a simple picture. Sadowski took it as part of his job. He did not create
the scene or stage his subjects. He cannot claim ownership in the car. The picture
might have involved creative decisions, such as the angle from which he would take the
picture and lens he would use, but this does not make the picture more creative than
factual. The picture is factual and published. This factor weights in favor of finding fair
use.
5.
Amount and Substantialiry.
This factor weights against fair use. BackChina says it used only as much as it
needed to report news. In other factors it also argues it used the article to educate its
readers on the dangers of carbon monoxide poisoning in cars. Sadowski argues this
factor weighs against fair use because BackChina used an exact duplicate.
BackChina duplicated his picture. This was unnecessary. A person does not
need a picture of a car with snow around it to understand the article.
6.
Market.
This factor weighs against fair use. BackChina says how it used the picture
promotes the arts and sciences and benefits the public. Its article told Chinese readers
that starting a car when it is surrounded by snow may result in death. His picture
attracted others to the text. Also, BackChina argues it served a different market than the
market Sadowski targeted. Sadowski targeted English news outlets.
BackChina says Sadowski has not shown a market exists for his photograph
because he cannot produce receipts for the license of his picture, only invoices.
Sadowski argues his business consists oflicensing pictures for money. He has produced
receipts for licensing other pictures, which shows there is a market for his pictures.
However, very few artists reach the level of recognition that entices people to buy
anything he produced regardless of its technical merit. Sadowski's sales of other works
does not imply a market for everyone of his pictures. Here, he claims receipt of $5,500
and $ I 5,00 for this picture without confirming data. Because he brought this action,
he must supply evidence
to
support each part of it. An invoice is a start, but it is not
sufficient. He also says BackChina's use is evidence that a market exists for his
photograph. This confirms a market but does not value his picture. Finally, he argues
that if BackChina is allowed to use his picture without paying a licensing fee, there
would be no incentive for people
to
create original works.
The receipts Sadowski has are not cogent in deciding whether a potential
market for this picture exists. Creader.net copied the picture from the Post, and
BackChina republished it. BackChina used the picture for the same reason the Post did.
This shows an audience for this picture exists and that shows a market exists.
Sadowski has not, however, supplied receipts for this picture. He has not shown
how much a news outlet in Canada or the United States that publishes its articles in
Chinese would pay to license this picture. The receipts he has produced do not show
other news outlets have licensed this picture. The market for his picture was short-lived
as is true for all but a few news photos - the flag being raised at Iwo Jima, the
Hindenburg fire, Martin Luther KingJr. at the Lincoln Monument, General Eisenhower
with the paratroopers, and some of the World Trade Centers on September I
7.
I,
2.001.
Conclusion.
BackChina's motion for summary judgment will be denied.
Signed onJuly 16, 2.018, at Houston, Texas.
~LynnN~M------
United States DistrictJudge
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