This Copyright Honest Use Opinion Discusses Jon Hamm’s Crotch 25 Occasions-Schwartzwald v. Oath

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This Copyright Fair Use Opinion Discusses Jon Hamm's Crotch 25 Times-Schwartzwald v. Oath

TL; DR: Fair Use supports another motion to reject a photo copyright case. A decision of little interest to copyright attorneys. The real reason you want to read this blog post is to learn why a court speaks about Jon Hamm's crotch at least 25 times ("Underwear" = 12, "Private" = 7, "Groin" and "Loin"). = 3 each; but no occurrence of the words "command" or "outdoors").

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Schwartzwald took the following photo of Jon Hamm and his girlfriend at the time, Jennifer Westfield:

(Sorry, it's a thumbnail, but I'm trying to avoid being the next defendant.) If you look very carefully at the original photo included in the court opinion, you may notice a bulge on Hamm's right pant leg, which could represent the outline of his unpadded penis. According to Schwartzwald, "the photo shows Jon Hamm wearing pants in public while walking down the street, supposedly without underwear."

On December 27, 2013, the Huffington Post (now owned by Oath, the named defendant) published a fluffy clickbait list titled "25 Things You Wish You Won't Have Learned In 2013 And Have To Forget About In 2014". "

(It is a sign of more innocent times that the "things we learned in 2013" did not include pandemics, 200,000 Americans dead from COVID19, #HeKnew, politicization of wearing masks, devastating infernos across the western United States, PurpleAir. rampant racism among law enforcement officials, like many Americans the murder – or at least gassing – of peaceful protesters, racial voter suppression, innocent immigrant children still held in separate cages from their parents, AG Barr's uninterrupted corruption, kakistocracy, kleptocracy, or #MAGA).

OK, back to the lawsuit. # 24 on HuffPo's year-end list reads "Some advertisers don't do underwear" with the following text:

This year has been a busy year for Mad Men star Jon Hamm's private life. Apparently he's very blessed south of the border, and he or those investigating photos of him really want you to know. Hamm says he wants people to stop talking about his loins, but putting on underwear might help.

This photo accompanied the entry:

(Yes, I can view a larger size as the court found HuffPo's photo posting fair use, so I have a good chance of getting fair use too.)

As you can see, the HuffPo photo cut out the girlfriend, cut off the top of the photo, cropped it off a little on the left, cut off Hamm's legs and bag, and overlaid the box for loading pictures, in which Hamm's penis presumably bulges with no surrounding underwear. The photo does not show it, according to the court, but HuffPo turned the photo into an animated GIF and added the appearance of dots after the word "load". (I think the image is still "loading" because Hamm's penis is so big it takes extra time to render …? Everything about the HuffPo article is so bland).

Schwartzwald registered the photo copyright 2017 (3 years after the republication of HuffPo). He claims he spotted the HuffPo photo in 2018. He sued in October 2019, almost 6 years after the first re-release. All of this raises obvious statute of limitations problems. However, there is essentially no statute of limitations for posting suspected infringing material online.

That brings us to the "merits" of the case. The court finds that HuffPo used a motion for dismissal fairly. The court justified the early step: "If" the only two pieces of evidence required to determine the fair use issue "are" the original version "and the allegedly infringing version, it is appropriate to move the matter to dismissal to decide. ”

First factor: type of use / transformativity

The court says HuffPo transformed the photo:

Oath claims the photo's use was transformative because the item's overlaid text box, caption, title, and broader context fundamentally changed the character and purpose of its use. The court agrees. In contrast to the original photo, which the plaintiff claims had the objective purpose of "illustrating Jon Hamm wearing pants in public while walking down the street, allegedly without underwear," Oath's use of the photo served twofold Purpose to mock both Hamm and those who found the photo to be topical in the first place. The text field with the words "IMAGE LOADING" in capital letters – a play on words that alludes to both the nature of digital technology and the part of the body in question – indicates that Oath is making fun of Hamm and is not just "illustrating" his appearance . As noted above, the headline of Oath's article – 25 Things You Wish You Won't Learn In 2013 and Need To Forget In 2014 – makes it clear that the article's broader purpose is to learn about events, trends, or topics The text immediately before the photo confirms the conclusion of the court that the article aims to ridicule the public fixation on Hamm's "private" and ridicule Hamm himself. It says:

This year has been a busy year for Mad Men star Jon Hamm's private life. Apparently he's very blessed south of the border, and he or those investigating photos of him really want you to know. Hamm says he wants people to stop talking about his loins, but putting on underwear might help.

The caption therefore refers twice to the public's focus on exposing photos of Hamm – first by describing "those who investigate photos of Hamm" and second by stating that "Hamm says he wants the people stop talking about his loins ". This caption, in the context of the article's greater focus on viral moments, shows that Oath used the photo in part to mock the fact that the photo initially went viral. The Court therefore concludes that the inferred use of the photo in Oath's article served two purposes that differ from those of the original photo.

HuffPo also hid the key elements: “By overlaying a text field over Hamm's groin, Oath covered the specific part of the photo that supposedly reveals (whether Hamm is wearing underwear or not). A reader of Oath's article could therefore not see exactly what the photo supposedly represents under the strategically placed text box – and what sets the photo apart from most of Hamm's other photos. "

So, as Yang v. Mic, “uses the photo to illustrate what all the fuss is about,” namely Hamm's “private ones” and the public's fixation on them, which is a different use of the photo than Schwartzwald's intended. ”

(At this point I am 100% on the Hamm team that people should really "stop talking about their loins").

So HuffPo modified the photo enough to be able to transform it:

Eid didn't just add a border, hashtag, or another minor change to the photo. Instead, as described above, about half of the image was cropped, a comedic text field was placed over the main part of the photo (Hamm's groin area), a funny lettering was placed over the photo and placed in the context of a larger article about "viral" moments or trends

(As further proof of the challenges faced by the judges when analyzing the procedural humor: “funny caption” 😂).

The fact that HuffPo is a for-profit publisher didn't outweigh its transformativity.

Second factor: type of work: the court says the photo is factual rather than creative as it is "a standard paparazzi-style photo of a celebrity walking in public". Quote on Barcroft.

Third factor: amount and materiality of the captured part: HuffPo cropped half of the photo and overlaid the text box. The court rejects the derisive argument that HuffPo could have recreated the photo – the whole point was to show Hamm how he does his daily chores without underwear, so that a newly created photo would not be enough.

Fourth Factor: Market Effect: Using HuffPo is transformative and potential buyers are unlikely to prefer their version over the original, especially if the text box hides the goodies.

Conclusion: Schwartzwald is losing; Case dismissed. Usually, when I see a successful fair use defense on a dismissal application, I think this is a great candidate for a 505 fee shift. However, since the first factor was partially significant to Schwartzwald due to HuffPo's commercial nature, I doubt the judge would allow the fee shift.

Personal Note: I know you have been confused by the judgment of a lawyer for a copyright plaintiff who loses fair use on a motion for dismissal. But even without knowing it, you already know who did it. Richard Liebowitz was a one-man architect of an ever-growing wall of defensive precedents. 🙏🙏🙏 Remarkably, Liebowitz has apparently not yet lost his license to practice in SDNY, although I wonder if that is inevitable.

Case quote: Schwartzwald v Oath, Inc., 2020 WL 5441291 (S.D.N.Y., September 10, 2020)

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