Is Using an Unflattering Candid Photo in Blog Posts To Criticize the Subject of the Photo Fair Use?

Yes.

Irina Chevaldina was a tenant in commercial property owned by one of Raanan Katz's corporate entitles.  Chevaldina was unhappy with Katz and posted a number of blog entries criticizing him.  Some of those posts included a candid photo of Katz that Katz deemed unflattering:

Katz acquired the copyright to the photo from the photographer, and then sued Chevaldina (and Google) for infringement.  Katz apparently dropped his vicarious infringement claim against Google but pursued the direct infringement claim against Chevaldina.  Chevaldina argued that fair use protected her usage.  The district court agreed, granting summary judgment in her favor.  Katz appealed.

The Eleventh Circuit explained the test for fair use:

In deciding whether a defendant's use of a work constitutes fair use, courts must weigh the following four factors: (1) the purpose and character of the allegedly infringing use; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; (4) and the effect of the use on the potential market or value of the copyrighted work. Id. These four statutory factors are not to be treated in isolation from one another. See Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct.1164, 1170–71, 127 L.Ed.2d 500 (1994)

Purpose and Character
Katz argue that the purpose and character of usage was commercial in nature because one of the blog posts indicated a desire to write a book in the future about the experience.  The Court was not persuaded:

Chevaldina's reference to her intention to write a book about her experiences with Katz does not alone, however, transform the blog post into a commercial venture. Overall, the blog post retains her educational purpose of lambasting Katz and deterring others from conducting business with him. See March 4, 2012 Blog Post (“I hope my book will help ambitious people in their dream to be successful without selling the[ir] soul to the [d]evil.”). Moreover, the link between Chevaldina's commercial gain and her copying of the Photo was attenuated given that Chevaldina never wrote a book nor made any profits whatsoever. See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756F.3d 73, 83 (2d Cir.2014) (discounting commercial nature of use where “the link between the defendant's commercial gain and its copying is attenuated such that it would be misleading to characterize the use as commercial exploitation” (quotations and alterations omitted)).

The Court also explained that, even though the photo was not altered, the usage was still transformative:

Chevaldina's use of the Photo was also transformative. A use is transformative when it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” See Campbell, 510 U.S. at 579, 114 S.Ct. at 1171. Chevaldina's use of the Photo was transformative because, in the context of the blog post's surrounding commentary, she used Katz's purportedly “ugly” and “compromising” appearance to ridicule and satirize his character. See Swatch,756 F.3d at 84 (“Courts often find such uses [of faithfully reproduced works] transformative by emphasizing the altered purpose or context of the work, as evidenced by the surrounding commentary or criticism.”); A.V. ex el Vanderhyev. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir.2009) (“The use of a copyrighted work need not alter or augment the work to be transformative in nature.”); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1270 (11th Cir.2001) (finding transformative use where work was “principally and purposefully a critical statement”).

Nature of the Copyrighted Work
The Court stated that the law recognized a greater need to disseminate factual works than works of fantasy or fiction and went on to find this work to be factual as it was a mere candid photo.

Amount of Work Used
This factor garnered little attention as it is less relevant in analyzing alleged infringements of photographs.

Effect of the Use on the Potential Market for the Work
By Katz's own activities, it appears there is no market for the work, thus no market to destroy:

The district court did not err in finding Chevaldina's use of the Photo would not materially impair Katz's incentive to publish the work. Katz took the highly unusual step of obtaining the copyright to the Photo and initiating this lawsuit specifically to prevent its publication. Katz profoundly distastes the Photo and seeks to extinguish, for all time, the dissemination of his “embarrassing” countenance. Due to Katz's attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work. While we recognize that even an author who disavows any intention to publish his work “has the right to change his mind,” see Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1181 (9thCir.2012) (quotation omitted), the likelihood of Katz changing his mind about the Photo is, based on the undisputed evidence in the record, incredibly remote.

Summary judgment decision affirmed.
Katz v. Google, Inc., Case No. 14-14525 (11th Cir. Sept. 17, 2015)

Fair use to use motorcycle pictures in a magazine? Let the jury decide. But no profits from sales of the motorcycle or magazine for copyright holder

Kawasaki was introducing a new motorcycle, so it hired Roaring Toyz to customize two motorcycles. These custom motorcycles were to be displayed alongside the standard model during Daytona Bike Week. Latimer, a professional photographer, was engaged to take pictures following Roaring Toyz' progress. Latimer emailed some of his pictures to Roaring Toyz (each picture included a notice that it was protected by copyright). Roaring Toyz emailed the pictures to Kawasaki. Kawasaki distributed a press kit which included five of these pictures. Cycle World magazine (which is published by defendant Hachette Filipacchi Media US, Inc.) published an article about the new motorcycle and included one of the pictures. Latimer sued for copyright infringement.

Fair Use

Hachette sought summary judgment that its use was a fair use. The Court weighed the law:

1) Purpose and character of the use

The use of the pictures in a magazine was a commercial use, but Latimer's photographs weren't selected to generate a profit or increase the sales of the magazine. Commercial nature doesn't weigh heavily against finding fair use. But magazine's use of the photographs without significant alteration was not significantly transformative. Thus, balance of this sub-factor weighted slightly against finding fair use.

2) Nature of the copyrighted work

"Original, creative works merit more protection than more factual or derivative works." No dispute that Latimer's photographs are creative, and thus entitled to greater protection.

3) Amount and substantiality of the portion used

The magazine only did minimal cropping of the photographs. But the magazine couldn't really crop them, as doing so would have cut out portions of the motorcycle (and what would have been the point of that?). Thus, this factor was neutral.

4) Effect of the use on the potential market

This factor is where the Court couldn't decide the issue at summary judgment. The magazine argued that Latimer was able to sell other photos to another magazine. But that had nothing to do with the market for the pictures at issue in the lawsuit. "[T]he question is not whether other similar photos could be sold in the future. Rather, it is whether Cycle World's publication impaired the market for the specific photos it used." Record didn't answer that question, so the jury will.

Indirect Profits

The Court also addressed defendants' request for summary judgment that there was no nexus between their profits and the copyrighted work. A copyright plaintiff is entitled to a defendant's profits attributable to the infringement. Per the statute (17 USC 504(b)), the plaintiff must put forth proof of the defendant's gross revenue, and it is the defendant's burden to prove his or her deductible expenses and those elements of profits attributable to factors other than the infringement.

Though the Eleventh Circuit has never ruled on this issue, virtually every other Court of Appeals "has required some nexus between the infringing activity and the gross revenue figure proffered by a plaintiff." Ordonez-Dawes v. Turnkey Props, Inc., 2008 WL 828124 (S.D. Fla. Mar. 26, 2008)

A low initial burden is placed on the copyright holder to make a showing of some causal connection between the infringement and the profits claimed. "[A] plaintiff may not seek gross revenues based entirely on a speculative connection to the plaintiff's claim." Thornton v. J Jargon Co., 580 F. Supp. 2d 1261, 1280 (M.D. Fla. 2008)

Latimer's claim here was too speculative. From Kawasaki, Latimer sought profits from the sales of the motorcycles. And from the magazine publisher, he wanted profits from sales of the magazine. The Court was not convined by Latimer's evidence and argument, and so it granted summary judgment on this issue to defendants.

Latimer v. Roaring Toyz, Inc., Slip. Op., Case No. 06-1921 (M.D. Fla. Sept. 21, 2010) (J. Moody)