Victory: Eleventh Circuit Upholds Blogger’s Fair Use of Photo

The Eleventh Circuit ruled in favor blogger Irina Chevaldina’s use of an online photo of Raanan Katz, part owner of the Miami Heat and noted real estate developer.  The decision sets an important precedent not only in favor of blogger use of “headshot” photos but also against efforts to silence blogger criticism through a manipulative use of the copyright laws.  The legal wrinkle in the case: Katz had purchased the candid photo from the photographer in order to prevent  its further publication.

The Eleventh Circuit ruled that Chevaldina’s use was non-commercial and for an educational purpose, namely to editorialize about Katz’s business practices.  And since Katz purchased the photo to prevent its publication, he could hardly argue that Chevalina’s use harmed its marketable value.

The Eleventh Circuit opinion is worth a read if only because of its masterful recounting of the numerous satirical purposes to which Chevaldina managed to put the photo.  In its restrained way, the opinion makes clear the court’s impatience with Katz’s effort to “utilize copyright as an instrument of censorship against unwanted criticism.” Also worth a read are blog posts by Eugene Volokh, the Electronic Frontier Foundation (which filed an amicus brief in the case) and the South Florida Lawyers Blog



IR is representing a blogger, Irina Chevaldina, who is being sued for copyright infringement for using a headshot photo in one of her posts.  She won in the district court and CIR is endeavoring to defend the decision in her favor before the Eleventh Circuit Court of Appeals.

Ms. Chevaldina was a commercial tenant of Raanan Katz, a part-owner of the Miami Heat of the NBA and a commercial landlord.  The business relationship between Katz and Chevaldina ended badly and Chevaldina started several blogs devoted to criticizing Katz’s business (and other) practices, as well as those of his family.  As is common practice for bloggers, Chevaldina included a headshot photo of Katz, which she found on an Israeli website via a Google search (the picture had been used in the Israeli newspaper Haaretz).

Katz considered the photo unflattering and so, a year after Chevaldina published the photo, he “purchased” the copyright from the photographer so it would not again be shown publicly.  And then he sued Chevaldina for copyright infringement.  The issue in the case is whether the use of a headshot by a blogger fits within the definition of “fair use.”

The lower court granted Chevaldina’s motion for summary judgment on the grounds that her use was non-commercial, that it was “transformative” (because she used it for a different function than it served on the Israeli website), that it captured Katz in a public setting and was used simply to identify him, and finally, that there could be no harm to the market value of the photo since Katz had no interest in ever publishing it.  The case could help settle a vexing issue of fair use in favor of bloggers and thus help avoid the considerable expense of litigating what are very nearly frivolous claims.

Case Status: Victory

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