Is It Fair Use? Dockless Bike Edition

What Happens When the Way Your Licensee Used Your Work Comes in for Criticism?

On August 6, 2018, the New York Post published this article, “Dockless Bikes Are Already Clogging NYC Sidewalks.” The journalists reported that, of 100 dockless bikes placed in a certain service area, only eight could be found, and of those, one two were in “rideable condition.” They also reported a student’s griping about the lack of bikes, because they were all broken. And they reported one resident was annoyed that bikes are dropped off “outside any house or in the middle of the streets and leave them there until someone takes them again,” accurately describing how the system works.
The article was accompanied by a photograph taken by Dennis A. Clark. It depicted one of the dockless bikes neatly parked on the edge of a broad sidewalk, with plenty of room for pedestrians.
The article was an objectively bad self-own. Its headline and lede were all about how the bikes are “clogging” sidewalks, but the rest of the article was really about the scarcity of the bikes. The only evidence for clogging is that apparently five of the bikes were found together, broken down. But, since the journalists don’t otherwise describe the bikes as blocking or clogging anything, one may assume that the bikes were, in fact, out of the way. (One suspects an employee neatly bundled the bikes together for later pickup.)
The placement of the photograph seemed calculated to cause cognitive dissonance. It was placed between the headline and lede, both of which assert forcefully how bikes are clogging the sidewalks, while the photograph shows bike on a nice, clear sidewalk.
Transit advocates in New York noticed this and made fun of it. You can read it here. No, wait. That’s weird. It’s gone. I wonder why?¹At first, I assumed that Transportation Alternatives took the whole post down in response to a demand from the plaintiff, but I’m thinking that actually posts get pulled down after a couple of months or so routinely. If so, then this lawsuit is really, really a waste of time. Oh, well, you can read it here. In Transportation Alternatives’ “Daily Bike Forecast” blog for August 7, 2018, “Bike Snob NYC” pastes in a screen shot of the headline and photograph from the New York Post article, which makes the Bike Snob’s point: which is it, clogging or not enough bikes?
The New York Post probably could not care less. But Dennis A. Clark, the photographer, cared quite a lot. He sued Transportation Alternatives for copyright infringement. Although the New York Post had a license to reproduce and publicly display his photograph, Transportation Alternatives did not. And it wasn’t his fault that the Post decided to use his photograph in such an objectively stupid way that it begged to be mocked.
Before the case could really get started, Transportation Alternatives moved to dismiss on grounds of fair use. Under this sort of motion, the court can look at only what is in the complaint, what’s referenced in the complaint, and what’s attached to the complaint. The Transportation Alternatives blog post was attached to the complaint. And, although the Post article wasn’t attached to or referenced in the complaint, the blog post does describe it, so the court at least knew the context.
How do you think the court ruled? For added excitement, you can answer not only “FAIR USE!” and “NOT FAIR USE!,” but also “¯\_(ツ)_/¯”, meaning the court wasn’t prepared to rule one way or the other based on just the complaint.
Before you answer, here’s a fun fact. Although Clark didn’t register the photograph with the U.S. Copyright Office until after Transportation Alternatives’ infringing use of the photograph, he was still eligible for statutory damages because the registration was made within three months of publication. He filed the application on October 1, and the Post article (with the photograph) was published August 6.²Normally, if you want to be eligible for statutory damages and attorney’s fees for a published work, you must apply to register the work before the infringement, even if you weren’t aware of it. The idea is to encourage regular and early registrations. But there’s a three-month grace period after publication. Different (and less forgiving) rules apply to unpublished works. As Tara explained, although you might have applied in time, you still have to wait for the U.S. Copyright Office to get around to issuing the actual registration certificate before you can actually sue.
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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.