Indianapolis, Indiana – Attorneys for Plaintiff, Christopher Sadowski of Hawthorne, New Jersey, filed suit in the Northern District of Indiana alleging that Defendant, VideoIndiana Inc. of Indianapolis, Indiana, infringed its rights by publicly displaying a copy written photograph owned and registered by Plaintiff. Plaintiff is seeking damages, statutory damages, costs, expenses, attorneys’ fees, and pre-judgment interest and any other relief the court deem proper.
The photograph at issue in this case was taken by Sadowski at a protest outside of NBC Studios where Donald Trump was opening Saturday Night Live (the “Photograph”). On November 7, 2015, after licensing the Photograph from Sadowski, the New York Post ran an article that featured the Photograph and identified Sadowski as the photographer. The Photograph is registered with the United States Copryight Office and has the registration number VA 1-989-742.
Sadowski alleges that Defendant ran an article discussing Trump’s Saturday Night Live appearance using the Photograph without licensing the Photograph from him, constituting copyright infringement. The Plaintiff also claims that Defendant copied the Photograph from the New York Post article and removed the Plaintiff’s identifying information so as to conceal their infringement of the copyrighted photograph. For this claim, Plaintiff alleges they are entitled to costs, attorneys’ fees, gains and profits obtained by Defendant for the infringing use, or statutory damages ranging from $2,500.00 up to $25,000.00 per violation pursuant to 17 U.S.C. § 1203(c)(3)
In this case, Defendant can be expected to assert the affirmative defense of “fair use” against the copyright infringement claims. The Copyright Act, 17 U.S.C. § 107, provides four non-exclusive factors for determining the applicability of the fair use doctrine. While it would seem that these factors should be evenly balanced in order to achieve consistent results within the courts, this is not practicable as seen in many copyright infringement cases. First, the four factors listed are not an exhaustive list of factors a court may take into consideration. Second, many courts have ignored or heavily discounted the second factor, the nature of the work, because most litigated copyright materials are creative works. Finally, after trial and error within the courts, fair use has been found to require a holistic analysis, and cannot be put into a specific formula with tailored weights for each statutory factor. Therefore, while the Defendant can be expected to assert a fair use defense, in the end, the Court’s approach in applying the factors will determine whether the Defendant will prevail.