| HuffPo Use Of Jon Hamm
Crotch Shot Was Fair Use SDNY Judge Abrams
Rules
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
SDNY
COURTHOUSE, Sept 10 –
In 2013 the Huffington Post
used a photo of Jon Hamm with
his crotch obscured by a box
saying, Image Loading.
Now
notorious copyright attorney
Richard Liebowitz, recently
slammed by U.S. District Court
for the Southern District of
New York Judge Jesse M.
Furman, sued.
On July 7
SDNY Judge Ronnie Abrams held
a proceeding in the matter.
Inner City Press covered it,
below.
Liebowitz,
perhaps wisely, let James H.
Freeman do the argument for
him. And it was a highbrow
argument, about what
constitutes satire and thus
fair use, and what doesn't.
The defendant's
lawyer argued that the box
made it a commentary; Freeman
said that real Jon Hamm fans
would want to license even the
doctored picture, and so he
needed discovery.
Judge
Abrams reserved judgment,
then.
Now on September
10 she has ruled that it was
fair use, writing in part that
"The mere fact that Oath
reproduced the Photograph
without seeking Schwartzwald’s
authorization does not lead to
a finding of bad faith, as the
Second Circuit has noted that
it is “aware of no controlling
authority to the effect that
the failure to seek permission
for copying, in itself,
constitutes bad faith.”
Blanch, 467 F.3d at 256. In
any event, bad faith is not
“itself conclusive of the fair
use question, or even of the
first factor.” NXIVM Corp.,
364 F.3d at 479. In sum, the
Court finds that two of the
three sub-factors regarding
the purpose and
character of the use weigh in
favor of a finding that Oath’s
use was fair, and that the
only sub- factor that counsels
against fair use is not
entitled to significant
weight."
The case is
Schwartzwald v. Oath Inc.,
19-cv-9938 (Abrams)
***
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