Read the opinion here.
Read the set-up here.
Factor by factor, the court reasoned:

  1. Transportation Alternatives’ use of the photograph was transformative, even though the purpose was to criticize the New York Post article, and the Post‘s use of the photograph, not the photograph itself. (More on that below.) The court also found the use was non-commercial because Transportation Alternatives is a non-profit25How did the court “know” that Transportation Alternatives was a non-profit? It obviously is, but that fact isn’t in the complaint or in any of the attachments., and the use was just on a blog (as opposed to an attempt at fundraising).26I want to warn against the idea that non-profit status is somehow determinative of whether a use is commercial or not. Many non-profits are just as rapacious as for-profits, while many for-profits are effectively non-profit (on purpose!) because they’d rather not hassle with the complex regulations governing non-profit status. Here, I think the use really is non-commercial, and you can tell just by looking at the blog post. This factor weighs heavily in favor of fair use.
  2. The photograph “evinces at least a modicum of artfulness,” so this factor weighs against fair use. Having said that, the court warns that nobody really cares about this factor.27Citing Authors Guild v. Google for what is becoming an old saw: the second factor “has rarely played a significant role in determination of a fair use dispute.” You all know how I feel about this.
  3. Transportation Alternatives took the entire thing, but the court (as far as I can tell) regards this factor as a push28The court acknowledges that taking the whole thing weighs against fair use, just before it explains at length about how the amount used was reasonable. because the amount used was reasonable to achieve the transformative purpose.29Again, you all know how I feel about this. What made the Post article so stupid was so perfectly encapsulated by the Post’s juxtaposition of the headline and the photograph that it was reasonable to show the two exactly as the Post formatted them.
  4. The Transportation Alternatives’ use of the photograph doesn’t usurp or harm the market for photograph. The court doesn’t quite put it this way, but the screenshot that Transportation Alternative uses is much smaller than the photograph in the Post article. Further, the screenshot is married to the headline, whereas the photograph in the Post article is a separate file. Thus, if you really, really wanted to download (illegally) the photograph, you’d be a lot better off just grabbing the file from the Post than from the blog.

OK, so this wasn’t a very hard one. But it does emphasize a little bit of a sea-change in fair use over the last few years, starting with Cariou v. Prince. In Cariou, the district court held that Richard Prince infringed copyright, rejecting his fair use defense, in large part because his transformative uses of Patrick Cariou’s photographs didn’t comment on the photographs themselves. The Second Circuit reversed, holding that it wasn’t a requirement for transformative uses to comment on the work they were transforming.

The Reflex Is a Door to Finding Treasure in the Dark

This idea of reflexivity comes to us from parody. A parody is only a parody if it comments on the thing it is parodying. Thus, a song to the tune of “Oh, Pretty Woman” that replaces the pretty woman with (for example) a “big hairy woman” is a parody,30Not by much, in my opinion. but telling the OJ Simpson trial in the style of Dr. Seuss—The Cat NOT in the Hat—isn’t.
This used be crucial. If your work was really a parody, you were almost guaranteed to win. All the other factors flipped into your favor. The second factor flipped because parodies had to parody highly recognizable works, which were generally highly creative (no one is going to parody a specific parts catalogue, for example). The third factor flipped because you had to take a lot of the parodied work for the parody to even work. And the fourth factor flipped because no one would ever buy the parody of a work instead of the work itself. (I.e., no one is buying 2 Live Crew’s “Pretty Woman” in place of Roy Orbison’s “Oh, Pretty Woman.”)
But after Cariou, it’s not that crucial (though I sincerely hope that parody keeps a privileged place in the law). For an example, look no further than the recent decision in Dr. Seuss Enterprises v. ComicMix, holding that a mash-up between Dr. Seuss’ Oh, the Places You’ll Go! and Star Trek called Oh, the Places You’ll Boldly Go! is a fair use. The court found the mash-up to be highly transformative, yet not a parody. It wasn’t a parody because the mash-up didn’t comment directly on the Dr. Seuss work, but the court still gave it considerable credit for being transformative.
This explains something that puzzled many observers about that decision: why the court did not cite to the The Cat NOT in the Hat opinion in any meaningful way. That opinion was, after all, issued by the Ninth Circuit and was thus binding on the court, and it involved the use of works by Dr. Seuss. But The Cat NOT in the Hat was purely about parody. Back in 1998, I guess no one thought to push transformative uses very hard.31The concept was first endorsed by the Supreme Court only in late 1994, so when the The Cat NOT in the Hat case was first filed, it would have been brand new, and the lesson the lawyers might well have learned from the Oh, Pretty Woman decision was that parody was king. It was a while before lawyers started pushing non-parodic transformative uses. So, despite superficial similarities, The Cat NOT in the Hat wasn’t really relevant.
We are told by the Supreme Court that parody is a form of transformative use, but we are also taught by the Second Circuit that not all transformative uses must be reflexive. Fair enough. But where does this leave parody? I have two suggestions:

  • Parody is a special category of transformative uses that has its own set of rules.
  • Reflexivity is a quality that courts should consider when evaluating an allegedly transformative use. The more reflexive, the more transformative. Parodies stand at one extreme (with 2 Live Crew’s “Pretty Woman” somewhat removed from the extreme). Something like The Cat NOT in the Hat, which merely serves as a vehicle, is close the other extreme.

Thus, in this case, the reflexivity isn’t anywhere close to parody levels, but it’s not really as devoid as The Cat NOT in the Hat. Displaying the photograph was necessary to comment on something closely related to the photograph. True, it’s not Mr. Clark’s fault that the Post chose to use his photograph that way, but that’s a risk we all take when we license our works without reserving any oversight.32Reflexivity wouldn’t have helped at all in Cariou v. Prince. What drove that analysis was how recognizable Cariou’s photographs in Prince’s works. But, opposite of parody, the less recognizable, the more transformative. Collages where Prince cut up Cariou’s works and mixed them up with other images were fair use, but photographs that Prince just marked up were remanded to the trial court (though the case settled before the trial court got to rule).
Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.