Second Circuit Confirms Fair Use on Motion to Dismiss-Yang v. Mic

This is a circumstance initially filed by Richard Liebowitz that’s even now clogging the courts, which points out why it is so transparently unmeritorious. I beforehand described the circumstance:

The photo at concern depicted a man in a bar named Dan Rochkind. The NY Article licensed the photograph for its tale, “Why I will not day scorching girls any longer.” As you can infer from the title, the vapid tale bristled with sexism and achievable misogyny. As a final result, it sparked considerable criticism. Mic lined this criticism in a story, “Twitter is skewering the ‘New York Post’ for a piece on why a guy ‘won’t date incredibly hot ladies.’” The Mic post provided a screenshot of the NY Article posting, such as a portion of the accredited photo, at the prime of its story

The district courtroom granted Mic’s movement to dismiss on fair use grounds. In a memo view, the 2nd Circuit affirms the truthful use motion to dismiss.

Mother nature of the Use. “the Mic post in the same way uses an excerpt—in the sort of a composite screenshot—to include the public’s lampooning of the Write-up short article and offer its own commentary. Accordingly, Mic’s banner impression does not provide simply as an illustrative assist to describe Rochkind. Mic thus does not use Yang’s photograph “for exactly a central intent for which it was designed.””

Nature of the Function. Not related for the reason that of the transformative use.

Amount of money Taken. Mic took a sensible amount of money to effectuate its satire.

Marketplace Influence. “Because Yang has not, even so, plausibly alleged that such a marketplace exists for pictures that materialize to be highlighted in information article content criticizing the authentic write-up in which the photograph appeared, Yang’s market place was not plausibly harmed mainly because Mic did not license his picture.”

Mic’s Attorneys’ Fees. “the District Courtroom moderately discovered this scenario neither frivolous nor improperly motivated.” I strongly disagree. This case was frivolous on its encounter, and the truth the court located honest use on a motion to dismiss is prima facie proof of its frivolousness (i.e., any copyright law firm with any knowledge must not file a circumstance the place the reply is so evident).  Additionally, it would be entirely correct to award attorneys’ fees as a deterrent to other copyright house owners who could provide identical lawsuits for incorrect functions.

Situation Citation: Yang v. Mic Network Inc., 20-4097-cv(L) (2d Cir. March 29, 2022)